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Title: The Oregon Territory
       Its History and Discovery

Author: Travers Twiss

Release Date: February 21, 2012 [EBook #38942]

Language: English

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  THE
  OREGON TERRITORY,
  ITS
  HISTORY AND DISCOVERY;
  INCLUDING AN ACCOUNT OF
  THE CONVENTION OF THE ESCURIAL,
  ALSO,
  THE TREATIES AND NEGOTIATIONS
  BETWEEN
  THE UNITED STATES AND GREAT BRITAIN,
  HELD AT VARIOUS TIMES FOR THE SETTLEMENT OF
  A BOUNDARY LINE,
  AND
  AN EXAMINATION OF THE WHOLE QUESTION
  IN RESPECT TO
  FACTS AND THE LAW OF NATIONS.


  BY
  TRAVERS TWISS, D.C.L., F.R.S.,
  PROFESSOR OF POLITICAL ECONOMY IN THE UNIVERSITY OF OXFORD,
  AND ADVOCATE IN DOCTORS' COMMONS.


  NEW YORK:
  D. APPLETON & CO., 200 BROADWAY.
  PHILADELPHIA:
  GEO. S. APPLETON, 148 CHESNUT-STREET.
  CINCINNATI:--DERBY, BRADLEY & CO., 113 MAIN-STREET.
  MDCCCXLVI.




PREFACE.


The object which the author had in view, in instituting the accompanying
inquiry into the historical facts and the negotiations connected with the
Oregon Territory, was to contribute, as far as his individual services
might avail, to the peaceful solution of the question at issue between the
United States of America and Great Britain. He could not resist the
conviction, on reading several able treatises on the subject, that the
case of the United States had been overstated by her writers and
negotiators; and the perusal of Mr. Greenhow's Official Memoir, and
subsequent History of Oregon and California, confirmed him in this
impression, as they sought to establish more than was consistent with the
acknowledged difficulty of a question, which has now been the subject of
four fruitless negotiations. He determined, in consequence of this
conviction, to investigate carefully the records of ancient discoveries
and other matters of history connected with the North-west coast of
America, concerning which much contradictory statement is to be met with
in writers of acknowledged reputation. The result is, the present work,
which has unavoidably assumed a much larger bulk than was anticipated by
the author when he commenced the inquiry: it is hoped, however, that the
arrangement of the chapters will enable the reader to select, without
difficulty, those portions of the subject which he may deem to be most
deserving of his attention.

The expeditions of Drake and of Gali have thus necessarily come under
consideration; and the views of the author will be found to differ, in
respect to both these navigators, from those advanced by Mr. Greenhow,
more especially in respect to Drake. Had the author noticed at an earlier
period Mr. Greenhow's remark in the Preface to the second edition of his
History, that he has "never deviated from the rule of not citing
authorities at second-hand," he would have thought it right to apologise
for attributing the incorrectness of Mr. Greenhow's statements as to the
respective accounts of Drake's expedition, to his having been misled by
the authority of the article "Drake," in the Biographie Universelle. He
would even now apologise, were not any other supposition under the
circumstances less respectful to Mr. Greenhow himself.

In regard to Juan de Fuca, if the author could have supposed that in the
course of the last negotiations at Washington, Mr. Buchanan would have
pronounced that De Fuca's Voyage "no longer admits of reasonable doubt,"
he would have entered into a more careful analysis of Michael Lock's tale,
to show that it is utterly irreconcileable with ascertained facts. As it
is, however, the author trusts that enough has been said in the chapter on
the Pretended Discoveries of the North-west Coast, to convince the reader
that both the stories of Juan de Fuca and Maldonado[1], to the latter of
whom, Mr. Calhoun, at an earlier stage of the same negotiations, refers by
name as the pioneer of Spanish enterprise, are to be ranked with Admiral
Fonte's account, in the class of Mythical discoveries.

    [1] Maldonado's pretended Voyage bears the date of 1588. In the copy
    of Mr. Calhoun's letter, circulated on this side of the Atlantic, it
    is referred to the year 1528.

In regard to Vancouver, the author, it is hoped, will be pardoned for
expressing an opinion, that Mr. Greenhow has permitted his admitted
jealousy for the fame of his fellow-citizens to lead him to do injustice
to Vancouver's character, and to assail it with arguments founded in one
or two instances upon incorrect views of Vancouver's own statements. Mr.
Gallatin expressed a very different opinion of this officer, in his
Counter-statement, during the negotiation of 1826, when he observes that
Vancouver "had _too much probity_ to alter his statement, when, on the
ensuing day, he was informed by Captain Gray of the existence of the
river, at the mouth of which he had been for several days without being
able to enter it."

The chapter on the Convention of the Escurial is intended to give an
outline of the facts and negotiations connected with the controversy
between Spain and Great Britain in respect to Nootka Sound, and the
subsequent settlement of the points in dispute. The arguments which the
author conceived them to furnish against the positions of the
Commissioners of the United States, have been inserted, as the opportunity
offered itself, in the chapters on the several negotiations. The author,
however, has introduced in this chapter, what appears to him to be a
conclusive refutation of Mr. Buchanan's statement, "that no sufficient
evidence has been adduced that either Nootka Sound, or any other spot on
the coast, was ever actually surrendered by Spain to Great Britain."

The chapter on the Columbia River attempts to adjust the respective claims
of Heceta, Gray, and Broughton, to the discovery and exploration of that
river.

A few chapters have been next inserted on points of international law
connected with territorial title, which, it was thought, might facilitate
the examination of the questions raised in the course of the negotiations
by the Commissioners of Great Britain and the United States. They do not
profess to be complete, but they embrace, it is believed, nearly all that
is of importance for the reader to be familiar with.

The chapters on the Limits of Louisiana, and the Treaty of Washington,
were required to elucidate the "derivative title" of the United States.

If the author could have anticipated the publication of the correspondence
between Mr. Pakenham and the Plenipotentiaries of the United States, he
would most probably have adopted a different arrangement in his review of
the several negotiations, so as to avoid an appearance of needless
repetition. His manuscript, however, with the exception of the two last
chapters, was completed before the President's message reached this
country. As the earlier sheets, however, were passing through the press,
one or two remarks have been inserted which have a bearing on the recent
correspondence; but it should be observed, that a separate review of each
negotiation was designedly adopted, for the purpose of enabling the reader
to appreciate more readily the variety of phases, which the claims of the
United States have assumed in the course of them.

Some observations have been made in Chapter XII. and other places, upon
the general futility of the argument from maps in the case of disputed
territory. The late negotiations at Washington have furnished an apposite
illustration of the truth of the author's remarks. Mr. Buchanan, towards
the conclusion of his last letter to Mr. Pakenham, addressed an argument
to the British Minister, of the kind known to logicians as the _argumentum
ad verecundiam_:--"Even British geographers have not doubted our title to
the territory in dispute. There is a large and splendid globe now in the
Department of the State, recently received from London, and published by
Maltby & Co., manufacturers and publishers to 'The Society for the
Diffusion of Useful knowledge,' which assigns this territory to the United
States." The history, however, of this globe is rather curious. It was
ordered of Mr. Malby (not Maltby) for the Department of State at
Washington, before Mr. Everett quitted his post of Minister of the United
States in this country. It no doubt deserves the commendation bestowed
upon it by Mr. Buchanan, for Mr. Malby manufactures excellent globes; but
the globe sent to Washington was not made from the plates used on the
globes published under the sanction of "The Society for the Diffusion of
Useful Knowledge," though this is not said by way of disparagement to it.
The Society, in its maps, has carried the boundary line west of the Rocky
Mountains, along the 49th parallel to the Columbia River, and thence along
that river to the sea; but in its globes the line is not marked beyond the
Rocky Mountains. Mr. Malby, knowing that the globe ordered of him was
intended for the Department of State at Washington, was led to suppose
that it would be more satisfactorily completed, as it was an American
order, if he coloured in, for it is not engraved, the boundary line
proposed by the Commissioners of the United States. The author would
apologise for discussing so trifling a circumstance, had not the
authorities of the United States considered the fact of sufficient
importance to ground a serious argument upon it.

In conclusion, the Author must beg pardon of the distinguished
diplomatists in the late negotiations at Washington, whose arguments he
has subjected to criticism, if he has omitted to notice several portions
of their statements, to which they may justly attribute great weight. It
is not from any want of respect that he has neglected them, but the limits
of his work precluded a fuller consideration of the subject.

LONDON, Jan. 22, 1846.




CONTENTS.


  CHAPTER                                                         PAGE

      I. The Oregon Territory                                       13

     II. The Discovery of the North-west Coast of America           26

    III. The Discovery of the North-west Coast of America           50

     IV. The pretended Discoveries of the North-west Coast          64

      V. The Convention of the Escurial                             76

     VI. The Oregon or Columbia River                               94

    VII. The Acquisition of Territory by Occupation                111

   VIII. Title by Discovery                                        115

     IX. Title by Settlement                                       123

      X. Derivative Title                                          129

     XI. Negotiations between the United States and Great
         Britain in 1818                                           141

    XII. The Limits of Louisiana                                   153

   XIII. The Treaty of Washington                                  162

    XIV. Negotiations between the United States and Great
         Britain in 1823-24                                        178

     XV. Examination of the Claims of the United States            189

    XVI. Negotiations between the United States and Great
         Britain in 1826-27                                        207

   XVII. Negotiations between the United States and Great
         Britain in 1844-45                                        224

  XVIII. Review of the General Question                            249




THE OREGON QUESTION.




CHAPTER I.

THE OREGON TERRITORY.

    North-west America.--Plateau of Anahuac.--Rocky
    Mountains.--New-Albion.--New Caledonia.--Oregon, or Oregan, the River
    of the West.--The Columbia River.--Extent of the Oregon
    Territory.--The Country of the Columbia.--Opening of the Fur Trade in
    1786.--Vancouver.--Straits of Anian.--Straits of Juan de
    Fuca.--Barclay.--Meares.--The American sloop Washington.--Galiano and
    Valdés.--Journey of Mackenzie in 1793.--The Tacoutche-Tesse, now
    Frazer's River.--North-west Company in 1805.--The Hudson's Bay Company
    in 1670.--The First Settlement of the North-west Company across the
    Rocky Mountains in 1806, at Frazer's Lake.--Journey of Mr. Thomson,
    the Astronomer of the North-west Company, down the North Branch of the
    Columbia River, in 1811.--Expedition of Lewis and Clarke, in
    1805.--The Missouri Fur Company, in 1808.--Their First Settlement on
    the West of the Rocky Mountains.--The Pacific Fur Company, in
    1810.--John Jacob Astor, the Representative of it.--Astoria,
    established in 1811.--Dissolution of the Pacific Fur Company, in July,
    1813.--Transfer of Astoria to the North-west Company, by Purchase, in
    October, 1813.--Subsequent Arrival of the British Sloop-of-War, the
    Racoon.--Name of Astoria changed to Fort George.


North-Western America is divided from the other portions of the continent
by a chain of lofty mountains, which extend throughout its entire length
in a north-westerly direction, in continuation of the Mexican Andes, to
the shores of the Arctic Ocean. The southern part of this chain,
immediately below the parallel of 42° north latitude, is known to the
Spaniards by the name of the Sierra Verde, and the central ridge, in
continuation of this, as the Sierra de las Grullas; and by these names
they are distinguished by Humboldt in his account of New Spain, (Essai
Politique sur la Nouvelle Espagne, l. i., c. 3,) as well as in a copy of
Mitchell's Map of North America, published in 1834. Mr. Greenhow, in his
History of Oregon and California, states that the Anahuac Mountains is
"the appellation most commonly applied to this part of the dividing chain
extending south of the 40th degree of latitude to Mexico," but when and on
what grounds that name has come to be so applied, he does not explain.
Anahuac was the denomination before the Spanish conquest of that portion
of America which lies between the 14th and 21st degrees of north latitude,
whereas the Cordillera of the Mexican Andes takes the name of the Sierra
Madre a little north of the parallel of 19°, and the Sierra Madre in its
turn is connected with the Sierra de las Grullas by an intermediate range,
commencing near the parallel of 30°, termed La Sierra de los Mimbres. The
application, indeed, of the name Anahuac to the entire portion of the
chain which lies south of 40°, may have originated with those writers who
have confounded Anahuac with New Spain; but as the use of the word in this
sense is incorrect, it hardly seems desirable to adopt an appellation
which is calculated to produce confusion, whilst it perpetuates an error,
especially as there appear to be no reasonable grounds for discarding the
established Spanish names. The plateau of Anahuac, in the proper sense of
the word, comprises the entire territory from the Isthmus of Panama to the
21st parallel of north latitude, so that the name of Anahuac Mountains
would, with more propriety, be confined to the portion of the Cordillera
south of 21°. If this view be correct, the name of the Sierra Verde may be
continued for that portion of the central range which separates the head
waters of the Rio Bravo del Norte, which flows into the Gulf of Mexico,
and forms the south-western boundary of Texas, from those of the Rio
Colorado, (del Occidente,) which empties itself into the Gulf of
California.

The Rocky Mountains, then, or, as they are frequently called, the Stony
Mountains, will be the distinctive appellation of the portion of the great
central chain which lies north of the parallel of 42°; and if a general
term should be required for the entire chain to the south of this
parallel, it may be convenient to speak of it as the Mexican Cordillera,
since it is co-extensive with the present territory of the United States
of Mexico, or else as the Mexican Andes, since the range is, both in a
geographical and a geological point of view, a continuation of the South
American Andes.

Between this great chain of mountains and the Pacific Ocean a most ample
territory extends, which may be regarded as divided into three great
districts. The most southerly of these, of which the northern boundary
line was drawn along the parallel of 42°, by the Treaty of Washington in
1819, belong to the United States of Mexico. The most northerly,
commencing at Behring's Straits, and of which the extreme southern limit
was fixed at the southernmost point of Prince of Wales's Island in the
parallel of 54° 40' north, by treaties concluded between Russia and the
United States of America in 1824, and between Russia and Great Britain in
1825, forms a part of the dominions of Russia; whilst the intermediate
country is not as yet under the acknowledged sovereignty of any power.

To this intermediate territory different names have been assigned. To the
portion of the coast between the parallels of 43° and 48°, the British
have applied the name of New Albion, since the expedition of Sir Francis
Drake in 1578-80, and the British Government, in the instructions
furnished by the Lords of the Admiralty, in 1776, to Captain Cook,
directed him "to proceed to the coast of New Albion, endeavouring to fall
in with it in the latitude of 45°." (Introduction to Captain Cook's Voyage
to the Pacific Ocean, 4to, 1784, vol. i., p. xxxii.) At a later period,
Vancouver gave the name of New Georgia to the coast between 45° and 50°,
and that of New Hanover to the coast between 50° and 54°; whilst to the
entire country north of New Albion, between 48° and 56° 30', from the
Rocky Mountains to the sea, British traders have given the name of New
Caledonia, ever since the North-west Company formed an establishment on
the western side of the Rocky Mountains, in 1806. (Journal of D. W.
Harmon, quoted by Mr. Greenhow, p. 291.) The Spanish government, on the
other hand, in the course of the negotiations with the British government
which ensued upon the seizure of the British vessels in Nootka Sound, and
terminated in the Convention of the Escurial, in 1790, designated the
entire territory as "the Coast of California, in the South Sea."
(Declaration of His Catholic Majesty, June 4th, transmitted to all the
European Courts, in the Annual Register, 1790.) Of late it has been
customary to speak of it as the Oregon territory, or the Columbia River
territory, although some writers confine that term to the region watered
by the Oregon, or Columbia River, and its tributaries.

The authority for the use of the word Oregon, or, more properly speaking,
Oregan, has not been clearly ascertained, but the majority of writers
agree in referring the introduction of the name to Carver's Travels.
Jonathan Carver, a native of Connecticut and a British subject, set out
from Boston in 1766, soon after the transfer of Canada to Great Britain,
on an expedition to the regions of the Upper Mississippi, with the
ultimate purpose of ascertaining "the breadth of that vast continent,
which extends from the Atlantic to the Pacific Ocean, in its broadest
part, between 43° and 46° of north latitude. Had I been able," he says,
"to accomplish this task, I intended to have proposed to government to
establish a post in some of those parts, about the Straits of Anian, which
having been discovered by Sir Francis Drake, of course belong to the
English." The account of his travels, from the introduction to which the
above extract in his own words is quoted, was published in London in 1778.
Carver did not succeed in penetrating to the Pacific Ocean, but he first
made known, or at least established a belief in, the existence of a great
river, termed apparently, by the nations in the interior, Oregon, or
Oregan, the source of which he placed not far from the head waters of the
River Missouri, "on the other side of the summit of the lands that divide
the waters which run into the Gulf of Mexico from those which fall into
the Pacific Ocean." He was led to infer, from the account of the natives,
that this "Great River of the West" emptied itself near the Straits of
Anian, (Carver's Travels, 3d edit., London, 1781, p. 542,) although it may
be observed that the situation of the so-called Straits of Anian
themselves was not at this time accurately fixed. Carver, however, was
misled in this latter respect, but the description of the locality where
he placed the source of the Oregon, seems to identify it either with the
Flatbow or M'Gillivray's River, or else, and perhaps more probably, with
the Flathead or Clark's River, each of which streams, after pursuing a
north-western course from the base of the Rocky Mountains, unites with a
great river coming from the north, which ultimately empties itself into
the Pacific Ocean in latitude 46° 18'. The name of Oregon has consequently
been perpetuated in this main river, as being really "the Great River of
the West," and by this name it is best known in Europe; but in the United
States of America, it is now more frequently spoken of as the Columbia
River, from the name of the American vessel, "The Columbia," which first
succeeded in passing the bar at its mouth in 1792. The native name,
however, will not totally perish in the United States, for it has been
embalmed in the beautiful verse of Bryant, whom the competent judgment of
Mr. Washington Irving has pronounced to be amongst the most distinguished
of American poets:--

                    "Take the wings
  Of morning, and the Barcan desert pierce,
  Or lose thyself in the continuous woods
  Where rolls the Oregon, and hears no sound
  Save his own dashings."

If we adopt the more extensive use of the term Oregon territory, as
applied to the entire country intermediate between the dominions of Russia
and Mexico respectively, its boundaries will be the Rocky Mountains on the
east, the Pacific Ocean on the west, the parallel of 54° 40' N. L. on the
north, and that of 42° N. L. on the south. Its length will thus comprise
12 degrees 40 minutes of latitude, or about 760 geographical miles. Its
breadth is not so easily determined, as the Rocky Mountains do not run
parallel with the coast, but trend from south-east to north-west. The
greatest breadth, however, appears to comprise about 14 degrees of
longitude, and the least about 8 degrees; so that we may take 11 degrees,
or 660 geographical miles, as the average breadth. The entire superficies
would thus amount to 501,600 geographical square miles, equal to 663,366
English miles. If, on the other hand, we adopt the narrower use of the
term, and accept the north-western limit which Mr. Greenhow, in his second
edition of his History of Oregon and California, has marked out for "the
country of the Columbia," namely, the range of mountains which stretches
north-eastward from the eastern extremity of the Straits of Fuca, about
400 miles, to the Rocky Mountains, separating the waters of the Columbia
from those of Frazer's river, it will still include, upon his authority,
not less than 400,000 square miles in superficial extent, which is more
than double that of France, and nearly half of all the states of the
Federal Union. "Its southernmost points" in this limited extent "are in
the same latitudes with Boston and with Florence; whilst its northernmost
correspond with the northern extremities of Newfoundland, and with the
southern shores of the Baltic Sea."

Such are the geographical limits of the Oregon territory, in its widest
and in its narrowest extent. The Indian hunter roamed throughout it,
undisturbed by civilised man, till near the conclusion of the last
century, when Captain James King, on his return from the expedition which
proved so fatal to Captain Cook, made known the high prices which the furs
of the sea otter commanded in the markets of China, and thereby attracted
the attention of Europeans to it. The enterprise of British merchants was,
in consequence of Captain King's suggestion, directed to the opening of a
fur trade between the native hunters along the north-west coast of
America, and the Chinese, as early as 1786. The attempt of the Spaniards
to suppress this trade by the seizure of the vessels engaged in it, in
1789, led to the dispute between the crowns of Spain and Great Britain, in
respect of the claim to exclusive sovereignty asserted by the former power
over the port of Nootka and the adjacent latitudes, which was brought to a
close by the Convention of the Escurial in 1790.

The European merchants, however, who engaged in this lucrative branch of
commerce, confined their visits to stations on the coasts, where the
natives brought from the interior the produce of their hunting
expeditions; and even in respect of the coast itself, very little accurate
information was possessed by Europeans, before Vancouver's survey.
Vancouver, as is well known, was despatched in 1791 by the British
government to superintend, on the part of Great Britain, the execution of
the Convention of the Escurial, and he was at the same time instructed to
survey the coast from 35° to 60°, with a view to ascertain in what parts
civilised nations had made settlements, and likewise to determine whether
or not any effective water communication, available for commercial
purposes, existed in those parts between the Atlantic and Pacific Oceans.

The popular belief in the existence of a channel, termed the Straits of
Anian, connecting the waters of the Pacific with those of the Atlantic
Ocean, in about the 58th or 60th parallel of latitude, through which
Gaspar de Cortereal, a Portuguese navigator, was reported to have sailed
in 1500, had caused many voyages to be made along the coast on either side
of North America during the 16th and 17th centuries, and the exaggerated
accounts of the favourable results of these voyages had promoted the
progress of geographical discovery by stimulating fresh expeditions. In
the 17th century, a narrative was published by Purchas, in his "Pilgrims,"
professing that a Greek pilot, commonly called Juan de Fuca, in the
service of the Spaniards, had informed Michael Lock the elder, whilst he
was sojourning at Venice in 1596, that he had discovered, in 1592, the
outlet of the Straits of Anian, in the Pacific Ocean, between 47° and 48°,
and had sailed through it into the North Sea. The attention of subsequent
navigators was for a long time directed in vain to the rediscovery of this
supposed passage. The Spanish expedition under Heceta, in 1775, and the
British under Cook, in 1778, had both equally failed in discovering any
corresponding inlet in the north-west coast, doubtless, amongst other
reasons, because it had been placed by the author of the tale between the
parallels of 47° and 48°, where no strait existed. In 1787, however, the
mouth of a strait was descried a little further northward, between 48° and
49°, by Captain Barclay, of the Imperial Eagle, and the entrance was
explored in the following year by Captain Meares, in the Felice, who
perpetuated the memory of Michael Lock's Greek pilot, by giving it the
name of the Straits of Juan de Fuca. Meares, in his observations on a
north-west passage, p. lvi., prefixed to his Voyage, published in 1790,
states that the American merchant sloop the Washington, upon the knowledge
which he communicated, penetrated the straits of Fuca in the autumn of
1789, "as far as the longitude of 237° east of Greenwich," (123° west,)
and came out into the Pacific through the passage north of Queen
Charlotte's Island. Vancouver's attention was directed, in consequence of
Captain Meares' report, to the especial examination of this strait, and it
was surveyed by him, with the rest of the coast, in a most complete and
effectual manner. A Spanish expedition, under Galiano and Valdés, was
engaged about the same time upon the same object, so that from this
period, i. e., the concluding decade of the last century, the coast of
Oregon may be considered to have been sufficiently well known.

The interior, however, of the country, had remained hitherto unexplored,
and no white man seems ever to have crossed the Rocky Mountains prior to
Alexander Mackenzie, in 1793. Having ascended the Unjigah, or Peace River,
from the Athabasca Lake, on the eastern side of the Rocky Mountains, to
one of its sources in 54° 24', Mackenzie embarked upon a river flowing
from the western base of the mountains, called, by the natives,
Tacoutche-Tesse. This was generally supposed to be the northernmost branch
of the Columbia river, till it was traced, in 1812, to the Gulf of
Georgia, where it empties itself in 49° latitude, and was thenceforth
named Frazer's river. Mackenzie, having descended this river for about 250
miles, struck across the country westward, and reached the sea in 52° 20',
at an inlet which had been surveyed a short time before by Vancouver, and
had been named by him Cascade Canal. _This was the first expedition of
civilised men through the country west of the Rocky Mountains._ It did not
lead to any immediate result in the way of settlement, though it paved the
way by contributing, in conjunction with Vancouver's survey, to confirm
the conclusion at which Captain Cook had arrived, that the American
continent extended, in an uninterrupted line, north-westward to Behring's
Straits.

The result of Mackenzie's discoveries was to open a wide field to the
westward for the enterprise of British merchants engaged in the fur trade;
and thus we find a settlement in this extensive district made, not long
after the publication of his voyage, by the agents of the North-west
Company. This great association had been growing up since 1784, upon the
wreck of the French Canadian fur trade, and gradually absorbed into itself
all the minor companies. It did not, however, obtain its complete
organisation till 1805, when it soon became a most formidable rival to the
Hudson's Bay Company, which had been chartered as early as 1670, and had
all but succeeded in monopolising the entire fur trade of North America,
after the transfer of Canada to Great Britain. The Hudson's Bay Company,
with the characteristic security of a chartered company, had confined
their posts to the shores of the ample territory which had been granted to
them by the charter of Charles II., and left the task of procuring furs to
the enterprise of the native hunters. The practice of the hunters was to
suspend their chase during the summer months, when the fur is of inferior
quality, and the animals rear their young, and to descend by the lakes and
rivers of the interior to the established marts of the company, with the
produce of the past winter's campaign. The North-west Company adopted a
totally different system. They dispatched their servants into the very
recesses of the wilderness, to bargain with the native hunters at their
homes. They established _wintering partners_ in the interior of the
country, to superintend the intercourse with the various tribes of
Indians, and employed at one time not fewer than 2,000 _voyageurs_ or
boatmen. The natives being thus no longer called away from their pursuit
of the beaver and other animals, by the necessity of resorting as
heretofore to the factories of the Hudson's Bay Company, continued on
their hunting grounds during the whole year, and were tempted to kill the
cub and full-grown animal alike, and thus to anticipate the supply of
future years. As the nearer hunting grounds became exhausted, the
North-west Company advanced their stations westwardly into regions
previously unexplored, and, in 1806, they pushed forward a post across the
Rocky Mountains, through the passage where the Peace River descends
through a deep chasm in the chain, and formed a trading establishment on a
lake now called Frazer's Lake, situated in 54° N. L. "_This_," according
to Mr. Greenhow, "_was the first settlement or post of any kind made by
British subjects west of the Rocky Mountains._" It may be observed,
likewise, that it was the first settlement made on the west of the Rocky
Mountains, _by civilised men_. It is from this period, according to Mr.
Harmon, who was a partner in the company, and the superintendent of its
trade on the western side of the Rocky Mountains, that the name of New
Caledonia had been used to designate the northern portion of the Oregon
territory.

Other posts were soon afterwards formed amongst the Flathead and Kootanie
tribes on the head waters or main branch of the Columbia; and Mr. David
Thomson, the astronomer of the North-west Company, descended with a party
to the mouth of the Columbia in 1811. Mr. Thomson's mission, according to
Mr. Greenhow, was expressly intended to anticipate the Pacific Fur Company
in the occupation of a post at the mouth of the Columbia. Such, indeed,
may have been the ultimate intention, but the survey of the banks of the
river, and the establishment of posts along it, was no less the object of
it. Mr. Thomson was highly competent to conduct such an expedition, as may
be inferred from the fact that he had been employed in 1798 to determine
the latitude of the northernmost source of the Mississippi, and had on
that occasion shown the impossibility of drawing the boundary line between
the United States of America and Canada, due west from the Lake of the
Woods to the Mississippi, as had been stipulated in the second article of
the treaty of 1783. _Mr. Thomson and his followers were_, according to Mr.
Greenhow, _the first white persons who navigated the northern branch of
the Columbia, or traversed any part of the country drained by it._

The United States of America had, in the mean time, not remained
inattentive to their own future commercial interests in this quarter, as
they had despatched from the southern side an exploring party across the
Rocky Mountains, almost immediately after their purchase of Louisiana, in
1803. On this occasion, Mr. Jefferson, then President of the United
States, commissioned Captains Lewis and Clarke "to explore the River
Missouri and its principal branches to their sources, and then to seek and
trace to its termination in the Pacific some stream, whether the Columbia,
the Oregon, the Colorado, or any other, which might offer the most direct
and practicable water communication across the continent for the purposes
of commerce." The party succeeded in passing the Rocky Mountains towards
the end of September, 1805, and after following, by the advice of their
native guides, the Kooskooskee River, which they reached in the latitude
43° 34', to its junction with the principal southern tributary of the
Great River of the West, they gave the name of Lewis to this tributary.
Having in seven days afterwards reached the main stream, they traced it
down to the Pacific Ocean, where it was found to empty itself, in latitude
46° 18'. They thus identified the Oregon, or Great River of the West of
Carver, with the river to whose outlet Captain Gray had given the name of
his vessel, the Columbia, in 1792; and having passed the winter amongst
the Clatsop Indians, in an encampment on the south side of the river, not
very far from its mouth, which they called Fort Clatsop, they commenced,
with the approach of spring, the ascent of the Columbia on their return
homeward. After reaching the Kooskooskee, they pursued a course eastward
till they arrived at a stream, to which they gave the name of Clarke, as
considering it to be the upper part of the main river, which they had
previously called Clarke at its confluence with the Lewis. Here they
separated, at about the 47th parallel of latitude. Captain Lewis then
struck across the country, northwards, to the Rocky Mountains, and crossed
them, so as to reach the head waters of the Maria River, which empties
itself into the Missouri just below the Falls. Captain Clarke, on the
other hand, followed the Clarke River towards its sources, in a southward
direction, and then crossed through a gap in the Rocky Mountains, so as to
descend the Yellowstone River to the Missouri. Both parties united once
more on the banks of the Missouri, and arrived in safety at St. Louis in
September, 1806.

The reports of this expedition seem to have first directed the attention
of traders in the United States to the hunting grounds of Oregon. The
Missouri Fur Company was formed in 1808, and Mr. Henry, one of its agents,
established a trading post on a branch of the Lewis River, the great
southern arm of the Columbia. _This seems to have been the earliest
establishment of any kind made by citizens of the United States west of
the Rocky Mountains._ The hostility, however, of the natives, combined
with the difficulty of procuring supplies, obliged Mr. Henry to abandon it
in 1810. The Pacific Fur Company was formed about this time at New-York,
with the object of monopolising, if possible, the commerce in furs between
China and the north-west coast of America. The head of this association
was John Jacob Astor, a native of Heidelberg, who had emigrated to the
United States, and had there amassed very considerable wealth by extensive
speculations in the fur trade. He had already obtained a charter from the
Legislature of New-York in 1809, incorporating a company, under the name
of the American Fur Company, to compete with the Mackinaw Company of
Canada, within the Atlantic States, of which he was himself the real
representative, according to his biographer, Mr. Washington Irving, his
board of directors being merely a nominal body. In a similar manner, Mr.
Astor himself writes to Mr. Adams in 1823, (Letter from J. J. Astor, of
New-York, to the Hon. J. Q. Adams, Secretary of State of the United
States, amongst the proofs and illustrations in the appendix to Mr.
Greenhow's work,) "You will observe that the name of the Pacific Fur
Company is made use of at the commencement of the arrangements for this
undertaking. I preferred to have it appear as the business of a company
rather than of an individual, and several of the gentlemen engaged, Mr.
Hunt, Mr. Crooks, Mr. M'Kay, M'Dougal, Stuart, &c., were in effect to be
interested as partners in the undertaking, so far as respected the profit
which might arise, but the means were furnished by me, and the property
was solely mine, and I sustained the loss." Mr. Astor engaged, on this
understanding, nine partners in his scheme, of whom six were Scotchmen,
who had all been in the service of the North-west Company, and three were
citizens of the United States. He himself had become naturalised in the
United States, but of his Scotch partners the three at least who first
joined him seem to have had no intention of laying aside their national
character, as, previously to signing, in 1810, the articles of agreement
with Mr. Astor, they obtained from Mr. Jackson, the British Minister at
Washington, an assurance that "in case of a war between the two nations,
they would be respected as British subjects and merchants."

Mr. Astor, having at last arranged his plans, despatched in September,
1810, four of his partners, with twenty-seven subordinate officers and
servants, all British subjects, in the ship Tonquin, commanded by Jonathan
Thorne, a lieutenant in the United States navy, to establish a settlement
at the mouth of the Columbia river. They arrived at their destination in
March, 1811, and erected in a short time a factory or fort on the south
side of the river, about ten miles from the mouth, to which the name of
Astoria was given. The Tonquin proceeded in June on a trading voyage to
the northward, and was destroyed with her crew by the Indians in the Bay
of Clyoquot, near the entrance of the Strait of Fuca.

In the following month of July, Mr. Thomson, the agent of the North-west
Company, to whom allusion has already been made, descended the northern
branch of the Columbia, and visited the settlement at the mouth of the
Columbia. He was received with friendly hospitality by his old companion,
Mr. M'Dougal, who was the superintendent, and shortly took his departure
again, Mr. Stuart, one of the partners, accompanying him up the river as
far as its junction with the Okinagan, where he remained during the
winter, collecting furs from the natives. The factory at Astoria, in the
mean time, was reinforced in January, 1812, by a further detachment of
persons in the service of the Pacific Fur Company, who had set out
overland early in 1811, and after suffering extreme hardships, and losing
several of their number, at last made their way, in separate parties, to
the mouth of the Columbia. A third detachment was brought by the ship
Beaver, in the following May. All the partners of the Company, exclusive
of Mr. Astor, had now been despatched to the scene of their future trading
operations. Mr. Mackay, who had accompanied Mackenzie in his expedition to
the Pacific in 1793, was alone wanting to their number: he had
unfortunately proceeded northwards with Captain Thorne, in order to make
arrangements with the Russians, and was involved in the common fate of the
crew of the Tonquin.

The circumstances, however, of this establishment underwent a great change
upon the declaration of war by the United States against Great Britain in
June, 1812. Tidings of this event reached the factory in January, 1813. In
the mean time Mr. Hunt, the chief agent of the Company, had sailed from
Astoria, in the ship Beaver, in August, 1812, to make arrangements for the
trade along the northern coast; whilst Mr. M'Dougal, the senior partner,
with Mr. Mackenzie and others, superintended the factory. They were soon
informed of the success of the British arms, and of the blockade of the
ports of the United States, by Messrs. M'Tavish and Laroque, partners of
the North-west Company, who visited Astoria early in 1813, with a small
detachment of persons in the employment of that company, and opened
negotiations with M'Dougal and Mackenzie for the dissolution of the
Pacific Fur Company, and the abandonment of the establishment at Astoria.
The association was in consequence formally dissolved in July, 1813; and
on the 16th of October following, an agreement was executed between
Messrs. M'Tavish and John Stuart, on the part of the North-west Company,
and Messrs. M'Dougal, Mackenzie, David Stuart, and Clarke, on the part of
the Pacific Fur Company, by which all the establishments, furs, and stock
in hand of the late Pacific Fur Company were transferred to the North-west
Company, at a given valuation, which produced, according to Mr. Greenhow,
a sum total of 58,000 dollars. It may be observed, that four partners only
of the Pacific Fur Company appear to have been parties to this agreement;
but they constituted the entire body which remained at Astoria, Mr. Hunt,
being absent, as already stated, and Messrs Crooks, Maclellan, and R.
Stuart, having returned over-land to New-York in the spring of 1813.

The bargain had hardly been concluded when the British sloop of war, the
Racoon, under the command of Capt. Black, entered the Columbia river, with
the express purpose of destroying the settlement at Astoria; but the
establishment had previously become the property of the North-west
Company, and was in the hands of their agents. All that remained for
Captain Black to perform, was to hoist the British ensign over the
factory, the name of which he changed to Fort George.

Mr. M'Dougal and the majority of the persons who had been employed by the
Pacific Fur Company, passed into the service of the North-west Company;
and the agents of the latter body, with the aid of supplies from England,
which arrived in 1814, were enabled to extend the field of their
operations, and to establish themselves firmly in the country, undisturbed
by any rivals.




CHAPTER II.

ON THE DISCOVERY OF THE NORTH-WEST COAST OF AMERICA.

    Voyage of Francisco de Ulloa, in 1539.--Cabrillo, in 1542.--Drake, in
    1577-80.--The Famous Voyage.--The World Encompassed.--Nuño da
    Silva.--Edward Cliffe.--Francis Pretty, not the Author of the Famous
    Voyage.--Fleurieu.--Pretty the Author of the Voyage of
    Cavendish.--Purchas' Pilgrims.--Notes of Fletcher.--World Encompassed,
    published in 1628.--Mr. Greenhow's Mistake in respect to the World
    Encompassed and the Famous Voyage.--Agreement between the World
    Encompassed and the Narrative of Da Silva.--Fletcher's Manuscript in
    the Sloane Collection of the British Museum.--Furthest Limit southward
    of Drake's Voyage.--Northern Limit 43° and upwards by the Famous
    Voyage, 48° by the World Encompassed.--The latter confirmed by Stow,
    the Annalist, in 1592, and by John Davis, the Navigator, in 1595, and
    by Sir W. Monson in his Naval Tracts.--Camden's Life of
    Elizabeth.--Dr. Johnson's Life of Sir F. Drake.--Fleurieu's
    Introduction to Marchand's Voyage.--Introduction to the Voyage of
    Galiano and Valdés.--Alexander von Humboldt's New Spain.


The Spaniards justly lay claim to the discovery of a considerable portion
of the north-west coast of America. An expedition from Acapulco under
Francisco de Ulloa, in 1539, first determined California to be a
peninsula, by exploring the Gulf of California from La Paz to its northern
extremity. The chart, which Domingo del Castillo, the pilot of Ulloa, drew
up as the result of this voyage, differs very slightly, according to
Alexander von Humboldt, from those of the present day. Ulloa subsequently
explored the western coast of California. Of the extent of his discoveries
on this occasion there are contradictory accounts, but the extreme limit
assigned to them does not reach further north than Cape Engaño, in 30°
north latitude.

In the spring of the following year, 1542, two vessels were despatched
under Juan Rodriguez Cabrillo from the port of Navidad. He examined the
coast of California, as far north as 37° 10', when he was driven back by a
storm to the island of San Bernardo, in 34°, where he died. His pilot,
Bartolemé Ferrelo, continued his course northwards after the death of his
commander. The most northern point of land mentioned in the accounts of
the expedition which have been preserved, was Cabo de Fortunas, placed by
Ferrelo in 41°, which is supposed by Mr. Greenhow to have been the
headland in 40° 20', to which the name of C. Mendocino was given, in honor
of the viceroy, Mendoza. Other authors, however, whose opinion is entitled
to consideration, maintain that Ferrelo discovered Cape Blanco in 43°, to
which Vancouver subsequently gave the name of Cape Orford. (Humboldt,
Essai Politique sur la Nouvelle Espagne, l. iii., c. viii. Introduccion al
Relacion del Viage hecho por las Goletas Sutil y Mexicana en el año de
1792.)

The Bull of Pope Alexander VI., as is well known, gave to Ferdinand and
Isabella of Spain all the New World to the westward of a meridian line
drawn a hundred leagues west of the Azores. When England, however, shook
off the yoke of the Papacy, she refused to admit the validity of Spanish
titles when based only on such concessions. Elizabeth, for instance,
expressly refused to acknowledge "any title in the Spaniards by donation
of the Bishop of Rome, to places of which they were not in actual
possession, and she did not understand why, therefore, either her
subjects, or those of any other European prince, should be debarred from
traffic in the Indies." In accordance with such a policy, Sir Francis
Drake obtained, through the interest of Sir Christopher Hatton, the
vice-chamberlain of the Queen, her approval of an expedition projected by
him into the South Sea. He set sail from Plymouth in 1577, passed through
the Straits of Magellan in the autumn of 1578, and ravaged the coast of
Mexico in the spring of 1579. Being justly apprehensive that the Spaniards
would intercept him if he should attempt to re-pass Magellan's Straits
with his rich booty, and being likewise reluctant to encounter again the
dangers of that channel, he determined to attempt the discovery of a
north-east passage from the South Sea into the Atlantic, by the reported
Straits of Anian.

There are two accounts, professedly complete, of Drake's Voyage. The
earliest of these first occurs in Hakluyt's Collection of Voyages,
published in 1589, and is entitled "The Famous Voyage of Sir Francis Drake
into the South Sea, and there-hence about the whole Globe of the Earth,
begun in the yeere of our Lord, 1577." It was re-published, by Hakluyt,
with some alterations, in his subsequent edition of 1598-1600, and may be
most readily referred to in the fourth volume of the reprint of this
latter edition, published in 1811. The other account is intitled "The
World Encompassed by Sir Francis Drake, collected out of the notes of Mr.
Francis Fletcher, Preacher in this employment, and compared with divers
others' notes that went in the same Voyage." This work was first published
in 1628, by Nicholas Bourne, and "sold at his shop at the Royal Exchange."
It appears to have been compiled by Francis Drake, the nephew of the
circumnavigator, as a dedication "to the truly noble Robert Earl of
Warwick" is prefixed, with his name attached to it. It will be found most
readily in the second volume of the Harleian collection of voyages. There
are also to be found in Hakluyt's fourth volume, two independent, but
unfortunately imperfect, narratives, one by Nuño da Silva, the Portuguese
pilot, who was pressed by Sir F. Drake into his service at St. Jago, one
of the Cape Verde islands, and discharged at Guatulco, where his account
terminates; the other by Edward Cliffe, a mariner on board the ship
Elizabeth, commanded by Mr. John Winter, one of Drake's squadron, which
parted company from him on the west coast of South America, immediately
after passing through the Straits of Magellan. The Elizabeth succeeded in
re-passing the straits, and arrived safe at Ilfracombe on June 2d, 1579;
and Mr. Cliffe's narrative, being confined to the voyage of his own ship,
is consequently the least complete of all, in respect to Drake's
adventures.

It is a disputed point, whether Drake, in his attempt to find a passage to
the Atlantic, by the north of California, reached the latitude of 48° or
43°. The Famous Voyage, is the account, on which the advocates for the
lower latitude of 43° rely. The World Encompassed, supported by Stow the
annalist, and two independent naval authorities, cotemporaries of Sir F.
Drake, is quoted in favour of the higher latitude of 48°. Before examining
the interval evidence of the two accounts, it may be as well to consider
the authority which is due to them from external circumstances, as Mr.
Greenhow's account of the two works is calculated to mislead the judgment
of the reader in this respect.

Mr. Greenhow, (p. 73,) in referring to the Famous Voyage, says that it was
"written by Francis Pretty, one of the crew of Drake's vessel, at the
request of Hakluyt, and published by him in 1589. It is a plain and
succinct account of what the writer saw, or believed to have occurred
during the voyage, and bears all the marks of truth and authenticity."

This statement could not but excite some surprise, as the Famous Voyage
has no author's name attached to it, either in the first edition of 1589,
or in any of the later editions of Hakluyt, the more so because Hakluyt
himself, in his Address to the favorable reader, prefixed to the edition
of 1589, leads us to suppose that he was himself the author of the work.
"For the conclusion of all, the memorable voyage of Master Thomas Candish
into the South Sea, and from thence about the Globe of the Earth doth
satisfie me, and I doubt not but will fully content thee, which as in time
it is later than that of Sir F. Drake, so in relation of the Philippines,
Japan, China, and the isle of St. Helena, it is more particular and exact;
and therefore the want of the first made by Sir Francis Drake will be the
lesse; _wherein I must confess to have taken more than ordinary paines,
meaning to have inserted it in this worke_; but being of late (contrary to
my expectation,) seriously dealt withall, not to anticipate or prevent
another man's paines and charge in drawing all the services of that
worthie knight into one volume, I have yielded unto those my friends which
pressed me in the matter, referring the further knowledge of his
proceedings to those intended discourses."

Hakluyt, however, appears to have had the narrative privately printed,
and, contrary to the intention which he entertained at the time when he
wrote his preface, and compiled his table of contents, and the index of
his first edition, in neither of which is there any reference to the
Famous Voyage, he has inserted the Famous Voyage between pages 643 and
644, evidently as an interpolation. It is nowhere stated that any copy of
this edition exists, in which this interpolation does not occur. It is
alluded to by Lowndes in his Bibliographical Manual, vol. ii., p. 853,
art. "Hakluyt." It is printed apparently on the same kind of paper, with
the same kind of ink, and in the same kind of type with the rest of the
work, but the signatures at the bottom of the pages, by which term are
meant the numbers which are placed on the sheets for the printer's
guidance, do not correspond with the general order of the signatures of
the work. This fact, combined with the circumstance that the pages are not
numbered, furnishes a strong presumption that it was printed subsequently
to the rest of the work. On the other hand there is evidence that it was
printed to bind up with the rest, from the circumstance that at the
bottom of the last page the word "Instructions" is printed to correspond
with the first word at the top of p. 644, being the title of the next
treatise--"Instructions given by the Honorable the Lords of the Counsell
to Edward Fenton, Esq. for the order to be observed in the voyage
recommended to him for the East Indies, and Cathay, April 9, 1582."

It can hardly be doubted that this account is the narrative about which
Hakluyt himself "had taken more than ordinary paines." Hakluyt, as is well
known, was a student of Christ Church, Oxford, who like his imitator
Purchas, was imbued with a strong natural bias towards geographical
studies, and himself compiled many of the narratives which his collection
contained.

This inference as to the authorship of the Famous Voyage, drawn from the
allusion in Hakluyt's preface to the work, will probably appear to many
minds more justifiable, if the claim set up in behalf of Francis Pretty
can be shown to be utterly without foundation. It may be as well,
therefore, to dispose of this at once. What may have been Mr. Greenhow's
authority it would be difficult to say, though it may be conjectured, from
another circumstance which will be stated below, that he has been misled
by an incorrect article on Sir Francis Drake in the Biographie
Universelle. M. Eyriés, the writer of this article, refers to Fleurieu as
his authority. Fleurieu, however, who was a distinguished French
hydrographer, and edited, in Paris, in the year VIII. (1800) a work
intitled "Voyage autour du Monde, par Etienne Marchand," with which he
published some observations of his own, intitled "Recherches sur les
terres de Drake," enumerates briefly in the latter work the different
accounts of Drake's voyage, but he no where mentions the name of the
author of the Famous Voyage. Fleurieu's information, indeed, was not in
every respect accurate, as he states that the edition of Hakluyt which
contained the Famous Voyage "ne parut à Londres qu'en 1600." What he says,
however, of the author, is comprised in a short note to this effect:--"Le
gentilhomme Picard, (employé sur l'escadre de Drake,) auteur de cette
relation, en ayant remis une copie au Baron de St. Simon, Seigneur de
Courtomer, celui-ci engagea François de Louvencourt, Seigneur de
Vauchelles, à en faire un extrait en Français sous le titre de 'le Voyage
Curieux faict autour du Monde par François Drach, Amiral d'Angleterre,'
qui fut imprimé chez Gesselin, Paris, 1627, en 8vo."

It might be supposed from this statement, that the work of M. de
Louvencourt would disclose the name of the gentleman of Picardy, who had
been the companion of Drake; but on referring to the edition just cited of
the French translation, the only allusion to Drake's companion which is to
be found in the work, occurs in a few words forming part of the dedication
to M. de St. Simon:--"Or, Monsieur, je le vous dédie, parceque c'est vous
que m'aviez donné, m'ayant fait entendre, que vous l'aviez eu d'un de vos
sujets de Courtomer, qui a fait le même voyage avec ce seigneur." Nothing
further can safely he inferred from this, than that M. de St. Simon
received the English copy, which M. de Louvencourt made use of, from one
of his vassals who had accompanied Drake in his expedition; but whether
this Picard subject of the lord of Courtomer was the author of the
narrative, does not appear from the meagre dedication, which seems to have
been the basis upon which Fleurieu's statement was founded.

Fleurieu refers to the Famous Voyage as printed in duodecimo, in London,
in the year 1600. This edition, however, cannot be traced in the catalogue
of the British Museum or the Bodleian Library, nor does Watt refer to it
in his Bibliotheca Britannica: but Fleurieu may have had authority for his
statement, though the size of the edition is at least suspicious. Even the
French translation of 1627, of which there was an earlier edition in 1613,
apparently unknown to Fleurieu, is in 8vo, and an English edition of the
Famous Voyage, slightly modified, which was published in London in 1752,
and may be found in the British Museum, is a very mean pamphlet, though in
8vo. The separate editions likewise of Drake's other voyages which are to
be met with in public libraries are in small quarto, so that there would
be no argument from analogy in favor of an edition in 12mo. The fact,
however, of its having disappeared, might perhaps be urged as a sign of
the insignificance of the edition.

It is very immaterial, even if Fleurieu has hazarded a hasty statement in
respect to there having been a separate edition of the Famous Voyage as
early as 1600. Thus much, at least, is certain, that Fleurieu is incorrect
in stating that the edition of Hakluyt, in which it was inserted, did not
appear before 1600; for a careful comparison between the French
translation, and the respective English editions of 1589 and 1600,
furnishes conclusive evidence that M. de Louvencourt's translation was
made from the narrative in the edition of 1589. Two examples will
suffice. The edition of 1589 gives 55-1/3 degrees of southern latitude,
and 42 degrees of northern latitude, as the extreme limits of Drake's
voyage towards the two poles, which the French translation follows; whilst
the edition of 1600 gives 57-1/3 degrees of southern latitude, and 43
degrees of northern latitude, as the southern and northern extremes. There
can therefore be little doubt that the work, which M. de Louvencourt
translated, was the narrative about which Hakluyt himself had taken no
ordinary pains: and which he printed separately from his general
collection of voyages, so that it might be circulated privately, though he
incorporated it into the work after it was completed.

So far, indeed, are we from finding any good authority for attributing the
authorship of the Famous Voyage of Sir Francis Drake to Francis Pretty,
one of his crew, as unhesitatingly advanced by Mr. Greenhow, that, on the
contrary there is the strongest negative evidence that it was not written
by a person of that name, unless we are prepared to admit that there were
two individuals of that name, the one a native of Picardy, and vassal of
the Sieur de Courtomer, the other an English gentleman, "of Ey in
Suffolke;" the one a companion of Drake, in his voyage round the world in
1577-80, the other a companion of Cavendish, in his voyage round the world
in 1586-88; the one the author of the Famous Voyage of Sir Francis Drake,
the other the writer of the Admirable and Prosperous Voyage of the
Worshipful Master Thomas Candish.

Hakluyt, in his edition of 1589, gave merely "The Worthy and Famous Voyage
of Master Thomas Candishe, made round about the Globe of the Earth in the
space of two yeeres, and lesse than two months, begon in the yeere 1586,"
which is subscribed at the end, "written by N. H.;" but in his edition of
1600, he published a fuller and more complete narrative, entitled, "The
Admirable and Prosperous Voyage of the Worshipfull Master Thomas Candish,
of Frimley, in the Countie of Suffolke, Esquire, into the South Sea, and
from thence round about the circumference of the whole earth; begun in the
yeere of our Lord 1586, and finished 1588. Written by Master Francis
Pretty, lately of Ey, in Suffolke, a gentleman employed in the same
action." The author, in the course of the narrative, styles himself
Francis Pretie, and says that he was one of the crew of the "Hugh Gallant,
a barke of 40 tunnes," which, with the Desire, of 120, and the Content, of
60 tons, made up Cavendish's small fleet. This Suffolk gentleman, for
several reasons, could not be the same individual as the Picard vassal of
the lord of Courtomer, nor is it probable that he ever formed part of the
crew of Drake's vessel in the Famous Voyage, as he no where alludes to the
circumstance, when he speaks of places which Drake visited, nor even when
he describes the hull of a small bark, pointed out to them by a Spaniard,
whom they had lately taken on board, in the narrowest part of the Straits
of Magellan, "which we judged to be a bark called the John Thomas." Now it
is contrary to all probability that the writer of this passage should have
been one of Drake's crew, for the vessel, whose hull was seen on this
occasion, was the Marigold, a bark of 50 tons, which had formed one of
Drake's fleet of five vessels, and had been commanded by Captain John
Thomas, which fact would have been known to one of Drake's companions, who
could never have committed so gross a blunder as to confound the name of
the ship with the name of the captain. That the circumstances of the loss
of the Marigold made no slight impression upon the minds of Drake's
companions, is shown from its being alluded to in all the narratives of
Nuño da Silva, Cliffe, and Fletcher, without exception.

Drake had succeeded in passing the Straits of Magellan with three of his
vessels: the Golden Hind, his own ship; the Elizabeth, commanded by
Captain Winter; and the Marigold, by Captain Thomas. On the 30th of
September, 1578, the Marigold parted from them in a gale of wind, and was
wrecked in the Straits. On the 7th of October the Elizabeth likewise
parted company from the Admiral; she, however, succeeded in making her way
back through the Straits, and arrived safe at Ilfracombe on the 7th of
June, 1579. It is singular that, in all the three accounts, which are
known to be written by companions of Drake, the separation of the
Marigold, as well as of the Elizabeth, is alluded to; whereas, in the
Famous Voyage, there is no allusion to the loss of the Marigold, but only
to the separation of the Elizabeth, whose safe arrival in England made the
fact notorious. If Hakluyt wrote the Famous Voyage, the general notoriety
of the separate return of the Elizabeth would account for his not
overlooking that circumstance, whilst he omitted all allusion to the
Marigold, about which his information would be comparatively imperfect. If
one of Drake's own crew was the author, it is difficult to suppose that he
would have carefully alluded to "their losing sight of their consort, in
which Mr. Winter was," who did not perish, and should omit all mention of
the loss of the Marigold, which is spoken of in the World Encompassed "as
the sorrowful separation of the Marigold from us, in which was Captain
John Thomas, with many others of our dear friends."

The course of this inquiry seems to justify the following conclusions:
that the "Famous Voyage of Sir Francis Drake" is, strictly speaking, an
anonymous work; that it is very improbable that it was compiled by one of
Drake's crew; on the contrary, Hakluyt's own preface to his edition of
1589, seems to warrant us in supposing that he had himself been employed
in preparing the narrative, which he printed separately from the rest of
his work, but subsequently inserted into it. Hakluyt had most probably
procured information from original sources, but he had certainly not
access, in 1589, to what he subsequently considered to be more trustworthy
sources, for he made various alterations in his narrative, in his edition
of 1600. There is assuredly not the slightest ground for attributing it to
Francis Pretty; and if M. Eyriés was the originator of this mistake, he
must undoubtedly have confounded the Famous Voyage of Drake with the
Famous Voyage of Candish. All that can be inferred from M. de
Louvencourt's dedication of his French translation to M. de St. Simon is,
that the Lord of Courtomer had received the English original from one of
his vassals, who had sailed with Drake; but the most ingenious
interpretation of his words will not warrant us in inferring that the
donor was likewise the author of the work.

It may be not unworthy of remark, that Purchas, in the fifth volume of his
Pilgrims, (p. 1181,) gives a list of persons known to the world as the
companions of Drake, in which the name of Francis Pretty is not found.
"Men noted to have compassed the world with Drake, which have come to my
hands, are Thomas Drake, brother to Sir Francis, Thomas Hood, Thomas
Blaccoler, John Grippe, George, a musician, Crane, Fletcher, Cary, Moore,
John Drake, John Thomas, Robert Winterly, Oliver, the gunner, &c." It
would be a reflection upon the well-known pains-taking research of
Purchas, to suppose that he would have omitted from his list the name of
the author of the Famous Voyage, had he been really one of Drake's crew.

The other narrative, which is far more full and complete than the Famous
Voyage, is entitled the "World Encompassed." It was published under the
superintendence of Francis Drake, a nephew of the Admiral, if not compiled
by him; the foundation of it, as stated in the title, seems to have been
the notes of Francis Fletcher, the chaplain of Drake's vessel, "compared
with divers others' notes that went in the same voyage." Fleurieu, in
speaking of this work, says: "Celleci est le récit d'un témoin oculaire:
et la fonction qu'il remplissait à bord du vaisseau amiral pourrait faire
présumer que, s'il n'était pas l'homme de la flotte le plus expérimenté
dans l'art de la navigation, du moins il devait être celui que les études
exigées de sa profession avaient mis le plus à portée d'acquérir quelques
connaissances, et qui pouvait le mieux exprimer ce qu'il avait vu."
(Recherches sur les terres australes de Drake, p. 227.)

Fleurieu, in further illustration of the probable fitness of Fletcher for
his task, refers to the excellent account of Anson's Voyages, written by
his chaplain, R. Walter, and to the valuable treatise on naval evolutions,
compiled by the Jesuit Paul Hoste, the chaplain of Tourville.

The earliest edition of "The World Encompassed" appeared in 1628, and a
copy of this date is to be found in the Bodleian Library, at Oxford. It
was printed for Nicholas Bourne, as "the next voyage to that to Nombre de
Dios, in 1572, formerly imprinted." A second edition was printed in 1635,
and is in the King's Library at the British Museum. A third edition was
published in 1652, and may be found in the Library of the British Museum.
It was therefore impossible not to feel surprise at Mr. Greenhow's
deliberately stating, that this work was not published before 1652, the
more so as Watt, in his Bibliotheca Britannica, refers to the first
edition of 1628. It is the coincidence of this second error, which
warrants the supposition that Mr. Greenhow has placed too implicit a faith
in the writer of the article upon Drake, in the Biographie Universelle. M.
Eyriés, the author of that article, there writes, "Un autre ouvrage
original est celui qui fut composé sur les mémoires de Francis Fletcher,
chapelain sur le vaisseau de Drake. Ces mémoires furent comparés et fondus
avec ceux de plusieurs autres personnes qui avaient été employées dans la
même expédition; le résultat de ce travail parut sous ce titre: The World
Encompassed, by Sir F. Drake, collected out of the notes of Master F. F.,
preacher in this employment, and others. Londres, 1652, 8vo." There is
another slight error in this statement, as the work is a small 4to, not an
8vo.

It has been deemed the more necessary to point out carefully the errors of
Mr. Greenhow, in regard to these two narratives, because he contrasts them
expressly (p. 74) as "the one proceeding entirely from a person who had
accompanied Drake in his expedition, and published in 1589, during the
life of the hero; the other compiled from various accounts, and not given
to the world until the middle of the following century."

In respect to the narrative of the World Encompassed, Mr. Greenhow thus
expresses himself:--"It is a long and diffuse account, filled with dull
and generally absurd speculations, and containing moreover a number of
statements, which are positive and evidently wilful falsehoods; yet it
contains scarcely a single fact not related in the Famous Voyage, from
which many sentences and paragraphs are taken verbatim, while others
convey the same meaning in different terms. The journal, or supposed
journal of Fletcher's, remains in manuscript in the British Museum: and
from it were derived the false statements above mentioned, according to
Barrow, who consulted it."

Mr. Greenhow's opinion of the length and diffuseness of the narrative, and
of the dulness and general absurdity of the speculations, will probably be
acquiesced in by those who have read the World Encompassed, but the rest
of his observations have been made at random. The World Encompassed does
not profess to be an original work, but to be a compilation from the notes
of several who went the voyage. It is therefore highly probable that the
compiler had before him "The Famous Voyage" amongst other narratives, and
we should be prepared to find many statements alike in the two accounts.
But it seems hard to suppose with Mr. Greenhow, that, where the World
Encompassed differs from the Famous Voyage, the statements are "positive
and evidently wilful falsehoods." There are several statements, for
instance, where the two narratives differ, and where the World Encompassed
agrees with Nuño da Silva's account, or with Cliffe's narrative.

For instance, on the second day after clearing the Straits of Magellan, on
Sept. 7th, a violent gale came on from the northeast, which drove Drake's
three vessels, the Golden Hind, the Elizabeth, and the Marigold to the
height of 57° south according to Cliffe, and about 200 leagues in
longitude west of the strait, according to the Famous Voyage. They could
make no head against the gale for three weeks, and during that interval
there was an eclipse of the moon, which is alluded to in all the
narratives. According to Nuño da Silva, they lay driving about, without
venturing to hoist a sail till the last day of September, and about this
time lost sight of the Marigold. The Elizabeth still kept company with the
Golden Hind, but on or before October 7th, Drake's vessel parted from her
consort. We now come to a very important event in Drake's voyage, which
would seem to be one of the supposed "positive and evidently wilful
falsehoods," to which Mr. Greenhow alludes.

The Famous Voyage conducts Sir F. Drake in a continuous course
north-westward, after losing sight of the Elizabeth, to the island of
Mocha, in 38° 30' south, whereas the World Encompassed says, that "Drake,
being driven from the Bay of the Parting of Friends out into the open sea,
was carried back again to the southward into 55° south, on which height
they found shelter for two days amongst the islands, but were again driven
further to the southward, and at length fell in with the uttermost part of
land towards the South Pole," in about 56° south. Here Fletcher himself
landed, and travelled to the southernmost part of the island, beyond which
there was neither continent nor island, but one wide ocean. We altered the
name, says Fletcher in his MS. journal, from Terra Incognita, to Terra
nunc bene Cognita. Now this account in the World Encompassed, varying so
totally from that in the Famous Voyage, is fully borne out by the positive
evidence of Nuño da Silva, who says, that after losing sight of another
ship of their company, the Admiral's ship being now left alone, with this
foul weather they ran till they were under 57°, where they entered into
the haven of an island, and stayed there three or four days. The Famous
Voyage would lead the reader to suppose, that after leaving the Bay of
Severing of Friends, the Elizabeth and Golden Hind were driven in company
to 57° 20' south; but it is altogether contrary to probability that Cliffe
should have omitted the fact of the Elizabeth having been in company with
Drake when he discovered the southernmost point of land, had such been the
case. The author of the Famous Voyage has evidently mixed up the events of
the gale in the month of September with those of the storm after the 8th
of October. This is a very striking instance of the truth of Captain W.
Burney's remark, "that the author of the Famous Voyage seems purposely, on
some occasions, to introduce confusion as a cloak for ignorance."

Again, the World Encompassed mentions that Drake was badly wounded in the
face with an arrow by the natives in the island of Mocha, about which the
Famous Voyage is altogether silent, but Nuño da Silva confirms this
statement. Other instances might be cited to the like purport.

Mr. Greenhow, at the end of his note already cited, says, "The journal, or
supposed journal of Fletcher, remains in MS. in the British Museum, and
from it were derived the false statements above mentioned, according to
Barrow, who consulted it." Mr. Greenhow has nowhere particularised what
these false statements are, unless he means that the statements are false
which are at variance with the Famous Voyage. It is evident, however, that
such a view assumes the whole point at issue between the two narratives to
be decided upon internal evidence in favour of the Famous Voyage, which a
careful examination of the two accounts will not justify.

But it is incorrect to refer to Fletcher's journal, as the source of the
assumed false statements in the World Encompassed. The manuscript to which
Captain James Burney refers, in his Voyage of Sir Francis Drake round the
world, as "the manuscript relation of Francis Fletcher, minister, in the
British Museum," forms a part of the Sloane Collection, in which there is
likewise a manuscript of Drake's previous expedition to Nombre de Dios. It
is not, however, properly speaking, a MS. of Fletcher's, but a MS. copy of
Fletcher's MS. It bears upon the fly-leaf the words, "e libris Joh.
Conyers, Pharmacopolist,--Memorandum, Hakluyt's Voyages of Fletcher." Its
title runs thus: "The First Part of the Second Voyage about the World,
attempted, contrived, and happily accomplished, to wit, in the time of
three years, by Mr. Francis Drake, at her Highness's command, and his
company: written and faithfully laid down by Ffrancis Ffletcher, Minister
of Christ, and Presbyter of the Gospel, adventurer and traveller in the
same voyage." On the second page is a map of England, and above it these
words: "This is a map of England, an exact copy of the original to a hair;
that done by Mr. Ffrancis Ffletcher, in Queen Elizabeth's time; it is
copied by Jo. Conyers, citizen and apothecary of London, together with the
rest, and by the same hand, as follows."

The work appears to have been very carefully executed by Conyers, and is
illustrated with rude maps and drawings of plants, boats, instruments of
music and warfare, strange animals, such as the Vitulus marinus and
others, which are referred to in the text of the MS., opposite to which
they are generally depicted, and each is specially vouched to be a
faithful copy of Fletcher's MS.

There is no date assigned to Fletcher's own MS., but we might fairly be
warranted in referring it to a period almost immediately subsequent to the
happy accomplishment of the voyage, from the leader of the company being
spoken of as "Mr. Francis Drake." The Golden Hind reached England in
November, 1580, and Drake was knighted by Queen Elizabeth in April, 1581;
there was then an interval of four months, during which the circumstances
of his voyage and his conduct were under the consideration of the Queen's
Council, and Fletcher may have completed his journal before their
favourable decision led to Drake's receiving the honour of knighthood. On
comparing the World Encompassed with this MS., it will be found that most
of the speculations, discussions, and fine writing in the World
Encompassed have emanated from the nephew of the hero, or whoever may have
been the compiler of the work, and have not been derived from this MS.,
which is written in rather a sober style, and is much less diffuse than
might reasonably be expected. Fletcher's imagination seems certainly to
have been much affected by the giant stature of the Patagonians, and by
the terrible tempest which dispersed the fleet after it had cleared the
Straits of Magellan. In respect to the Patagonians, Cliffe, it must be
allowed, says, they were "of a mean stature, well limbed, and of a duskish
tawnie or browne colour." On the other hand, Nuño da Silva says, they were
"a subtle, great, and well-formed people, and strong and high of stature."
Whichever of the two accounts be the more correct, this circumstance is
certain, that four of the natives beat back six of Drake's sailors, and
slew with their arrows two of them, the one an Englishman, and the other a
Netherlander, so that they could be no mean antagonists. In respect to the
tempest, the events of it must have with reason fixed themselves deep into
Fletcher's memory, for he writes in his journal, "About which time the
storm being so outrageous and furious, the barke Marigold, wherein Edward
Bright, one of the accusers of Thomas Doughty, was captain, with 28 souls,
was swallowed up, which chanced in the second watch of the night, wherein
myself and John Brewer, our trumpeter, being watch, did hear their fearful
cries continued without hope, &c."

There is a greater discrepancy between the Famous Voyage and the World
Encompassed, as to the furthest limit of Drake's expedition to the north
of the equator, than, as already shown, in regard to the southern limit.
We have here, unfortunately, no independent narrative to appeal to in
support of either statement, as the Portuguese pilot was dismissed by
Drake at Guatulco, and did not accompany him further. Hakluyt himself does
not follow the same version of the story in the two editions of his
narrative. In the Famous Voyage, as interpolated in the edition of 1589,
he gives 55-1/3° south, as the furthest limit southward; but in the
edition of 1600, he gives 57-1/3°; in a similar manner we find 42° north,
as the highest northern limit mentioned in the edition of 1589, whilst in
that of 1600 it is extended to 43°. Hakluyt thus seems to have found that
his earlier information was not to be implicitly relied upon, but we have
no clew to the fresh sources to which he had at a later period found
access. The World Encompassed, on the other hand, continues Drake's course
up to the 48th parallel of north latitude. The two narratives, however, do
not appear to be altogether irreconcileable. In the Famous Voyage, as
amended in the edition of 1600, we have this statement:--"We therefore set
sail, and sayled (in longitude) 600 leagues at least for a good winde, and
thus much we sayled from the 16 of April till the 3 of June. The 5 day of
June, being in 43 degrees towards the pole arcticke, we found the ayre so
colde that our men, being greevously pinched with the same, complained of
the extremitie thereof, and _the further we went, the more the cold
increased upon us_. Whereupon we thought it best for that time to seek the
land, and did so, finding it not mountainous, but low plaine land, till we
came within 38 degrees towards the line. In which height it pleased God to
send us into a faire and good baye, with a good winde to enter the same."

It will be seen from this account, that it was in the 43d, or, as in the
earlier edition of 1589, the 42d parallel of north lat., that the cold was
first felt so intensely by Drake's crew, and that the further they went,
the more the cold increased upon them; so that from the latter passage it
may be inferred that they did not discontinue their course at once as soon
as they reached the 43d parallel.

It appears, likewise, that Drake, from the nature of the wind, was obliged
to gain a considerable offing, before he could stand towards the
northward: 600 leagues _in longitude_, according to the first edition (the
second edition omitting the words 'in longitude,') which does not differ
much from the World Encompassed. The latter states--"From Guatulco, or
Aquatulco, we departed the day following, viz., April 16, setting our
course directly into the sea, whereupon we sailed 500 leagues in longitude
to get a wind: and between that and June 3, 1400 leagues in all, till we
came into 42 degrees of latitude, where the night following we found such
an alternation of heat into extreme and nipping cold, that our men in
general did grievously complain thereof."

The cold seems to have increased to that extremity that, in sailing two
degrees further north, the ropes and tackling of the ship were quite
stiffened. The crew became much disheartened, but Drake encouraged them,
so that they resolved to endure the uttermost. On the 5th of June they
were forced by contrary winds to run into an ill-sheltered bay, where they
were enveloped in thick fogs, and the cold becoming still more severe,
"commanded them to the southward whether they would or no." "From the
height of 48 degrees, in which now we were, to 38, we found the land by
coasting along it to be but low and reasonable plain: every hill, (whereof
we saw many, but none very high,) though it were in June, and the sun in
his nearest approach to them, being covered with snow. In 38° 30' we fell
in with a convenient and fit harbour, and June 17th came to anchor
therein, where we continued until the 23d day of July following."

The writer of this account, in another paragraph, confirms the above
statement by saying, "add to this, that though we searched the coast
diligently, even unto 48°, yet we found not the land to trend so much as
one point in any place towards the East, but rather running on continually
north-west, as if it went directly into Asia."

Mr. Greenhow is disposed to reject the statement of the World Encompassed,
for two reasons: first, because it is improbable that a vessel like
Drake's could have sailed through six degrees of latitude from the 3d to
the 5th of June; secondly, because it is impossible that such intense cold
could be experienced in that part of the Pacific in the month of June, as
is implied by the circumstances narrated, and therefore they must be
"direct falsehoods."

The first objection has certainly some reason in it; but in rejecting the
World Encompassed, Mr. Greenhow adopts the Famous Voyage as the true
narrative, so that it becomes necessary to see whether Hakluyt's account
is not exposed to objections equally grave.

Hakluyt agrees with the author of the World Encompassed, in dating Drake's
arrival at a convenient harbour on June 17,--(Hakluyt gives this date in
vol. iii., p. 524,)--so that Drake would have consumed twelve days in
running back three and a half degrees, according to one version of the
Famous Voyage, and four and a half degrees according to the other, before
a wind which was so violent that he could not continue to beat against it.
There is no doubt about the situation of the port where Drake took
shelter, at least within half a degree, that it was either the Port de la
Bodega, in 38° 28', as some have with good reason supposed, (Maurelle's
Journal, p. 526, in Barrington's Miscellanies,) or the Port de los Reyes,
situated between La Bodega and Port San Francisco, in about 38°, as the
Spaniards assert; and there is no difference in the two stories in respect
to the interval which elapsed after Drake turned back, until he reached
the port. There is, therefore, the improbability of Drake's vessel,
according to Hakluyt, making so little way in so long a time _before_ a
wind, to be set off against the improbability of its making, according to
the World Encompassed, so much way in so short a time on a wind, the wind
blowing undoubtedly all this time very violently from the north-west. Many
persons may be disposed to think that the two improbabilities balance each
other.

In respect to the intense cold, it must be remembered that the Famous
Voyage, equally with the World Encompassed, refers to the great extremity
of the cold as the cause of Drake's drawing back again till he reached
38°. There can, therefore, be no doubt that Drake did turn back on account
of his men being unable to bear up against the cold, after having so
lately come out of the extreme heat of the tropics. Is it more probable
that this intense cold should have been experienced in the higher or the
lower latitude? for the intense cold must be admitted to be a fact. Drake
seems to have been exposed to one of those severe winds termed _Northers_,
which in the early part of the summer, bring down the atmosphere, even at
New Orleans and Mexico, to the temperature of winter; but without seeking
to account for the cold, as that would be foreign to the present inquiry,
the fact, to whatever extent it be admitted, would rather support the
statement that Drake reached the 48th parallel, than that he was
constrained to turn back at the lower latitude of 43°.

It may likewise be observed that the description of the coast, "as
trending continually north-westward, as if it went directly into Asia,"
would correspond with the 48th parallel, but be altogether at variance
with the 43d; and it is admitted by all, that Drake's object was to
discover a passage from the western to the eastern coast of North America.
His therefore finding the land not to trend so much as one point to the
east, but, on the contrary, to the westward, whilst it fully accounts for
his changing his course, determines also where he decided to return. It
should not be forgotten that the statement in the World Encompassed, that
the coast trended to the westward in 48°, was in contradiction of the
popular opinion regarding the supposed Straits of Anian, and if it were
not the fact, the author hazarded, without an adequate object, the
rejection of this part of his narrative, and unavoidably detracted from
his own character for veracity.

We have, however, two cotemporaries of Sir Francis Drake, who confirm the
statement of the World Encompassed. One of these has been strangely
overlooked by Mr. Greenhow; namely, Stow the annalist, who, under the year
1580, gives an account of the return of Master Francis Drake to England,
from his voyage round the world. "He passed," he says, "forth northward,
till he came to the latitude of forty-seven, thinking to have come that
way home, but being constrained by fogs and cold winds to forsake his
purpose, came backward to the line ward the tenth of June, 1579, and
stayed in the latitude of thirty-eight, to grave and trim his ship, until
the five-and-twenty of July." This is evidently an account derived from
sources quite distinct from those of either of the other two narratives.
It occurs as early as 1592, in an edition of the Annals which is in the
Bodleian Library at Oxford, so that it was circulated two years at least
before Drake's death.

The other authority is that of one of the most celebrated navigators of
Drake's age, John Davis, of Sandrug by Dartmouth, who was the author of a
work entitled "The World's Hydrographical Discovery." It was "imprinted at
London, by Thomas Dawson, dwelling at the Three Cranes in the Vine-tree,
in 1595," and may be found most readily in the 4th volume of the last
edition of Hakluyt's Voyages. After giving some account of the dangers
which Drake had surmounted in passing through the Straits of Magellan,
which Davis had himself sailed through three times, he proceeds to say,
that "after Sir Francis Drake was entered into the South Seas, he coasted
all the western shores of America, until he came into the septentrional
latitude of forty-eight degrees, being on the back side of Newfoundland."
Now Davis is certainly entitled to respectful attention, from his high
character as a navigator. He had made three voyages in search of a
north-west passage, and had given his name to Davis' Straits, as the
discoverer of them; he had likewise been the companion of Cavendish in his
last voyage into the South Seas, in 1591-93, when, having separated from
Cavendish, he discovered the Falkland islands. He was therefore highly
competent to form a correct judgment of the value of the accounts which he
had received respecting Drake's voyage, nor was he likely, as a rival in
the career of maritime discovery, to exaggerate the extent of it. We find
him, on this occasion, deliberately adopting the account that Drake
reached that portion of the north-west coast of America, which
corresponded to Newfoundland on the north-east coast, or, as he distinctly
says, the septentrional latitude of 48 degrees.

Davis, however, is not the only naval authority of that period who adopted
this view, for Sir William Monson, who was admiral in the reign of
Elizabeth and James I., and served in expeditions against the Spaniards
under Drake, in his introduction to Sir Francis Drake's voyage round the
world, praises him because "lastly and principally that after so many
miseries and extremities he endured, and almost two years spent in
unpractised seas, when reason would have bid him sought home for his rest,
he left his known course, and ventured upon an unknown sea in forty-eight
degrees, which sea or passage we know had been often attempted by our
seas, but never discovered." And in his brief review of Sir F. Drake's
voyage round the world, he says: "From the 16th of April to the 5th of
June he sailed without seeing land, and arrived in forty-eight degrees,
thinking to find a passage into our seas, which land he named Albion."
(Sir W. Monson's Naval Tracts, in Churchill's Collection of Voyages, vol.
iii., pp. 367, 368.)

Mr. Greenhow (p. 75) says, that Davis's assertion carries with it its own
refutation, "as it is nowhere else pretended that Drake saw any part of
the west coast of America between the 17th degree of latitude and the
38th." But surely Davis might use the expression, "coasted all the western
shores of America," without being supposed to pretend that Drake kept in
sight of the coast all the way. The objection seems to be rather verbal
than substantial. Again, Sir W. Monson is charged by the same author with
inconsistency, because he speaks of C. Mendocino as the "furthest land
discovered," and the "furthermost known land." But Sir W. Monson is on
this occasion discussing the probable advantages of a north-west passage
as a saving of distance, and he is speaking of C. Mendocino, as the
"furthermost known part of America," i. e., the furthermost headland from
which a course might be measured to the Moluccas, and he is likewise
referring especially to the voyage of Francisco Gali, so that this
objection is more specious than solid. It should likewise not be
forgotten, that in the most approved maps of that day, in the last edition
of Ortelius, for example, and in that of Hondius, which is given in
Purchas's Pilgrims, C. Mendocino is the northernmost point of land of
North America. It may also not be amiss to remark, that in the map which
Mr. Hallam (in his Literature of Europe, vol. ii., c. viii., § v.) justly
pronounces to be the best map of the sixteenth century, and which is one
of uncommon rarity, Cabo Mendocino is the last headland marked upon the
north-west coast of America, in about 43° north latitude. This map is
found with a few copies of the edition of Hakluyt of 1589: in other
copies, indeed, there is the usual inferior map, in which C. Mendocino is
placed between 50° and 60°. The work, however, in which it has been
examined for the present purpose, is Hakluyt's edition of 1600, in which
it is sometimes found with Sir F. Drake's voyage traced out upon it: but
in the copy in the Bodleian Library, no such voyage is observed; whilst
the line of coast is continued above C. Mendocino and marked, in large
letters, "Nova Albion." Thus Hakluyt himself, in adopting this map as "a
true hydrographical description of so much of the world as hath been
hitherto discovered and is common to our knowledge," has so far admitted
that Nova Albion extended beyond the furthest land discovered by the
Spaniards. On the other hand, Camden, in his life of Elizabeth, first
published in 1615, adopts the version of the story which Hakluyt had put
forth in his earliest edition of the Famous Voyage, making the southern
limit 55° south, and the northern 42° north, which Hakluyt has himself
rejected in his later edition. There can be little doubt that Camden's
account bears internal evidence of having been copied in the main from
Hakluyt. Purchas, as we may gather from his work, merely followed Hakluyt.

In addition to these, Mr. Greenhow enumerates several comparatively recent
authors as adopting Hakluyt's opinion. Of these, perhaps Dr. Johnson has
the greatest renown. He published a life of Drake in parts, in five
numbers of the Gentleman's Magazine for 1740-41. It was, however, amongst
his earliest contributions, when he was little more than thirty years of
age, and therefore is not entitled to all the weight which the opinion of
Dr. Johnson at a later period of life might carry with it. But as it is,
the passage, as it stands at present, seems to involve a clerical error.
"From Guatulco, which lies in 15° 40', they stood out to sea, and without
approaching any land, sailed forward till on the night following the 3d of
June, being then in the latitude of 38°, they were suddenly benumbed with
such cold blasts that they were scarcely able to handle the ropes. This
cold increased upon them, as they proceeded, to such a degree that the
sailors were discouraged from mounting upon deck; nor were the effects of
the climate to be imputed to the warmth of the regions to which they had
been lately accustomed, for the ropes were stiff with frost, and the meat
could scarcely be conveyed warm to the table. On June 17th they came to
anchor in 38° 30'."

In the original paper, as published in the Gentleman's Magazine for
January, 1741, Dr. Johnson writes 38° in numbers as the parallel of
latitude where the cold was felt so acutely. This would be in a far lower
latitude than what any of the accounts of Drake's own time gives; so that
it may for that reason alone be suspected to be an error of the press,
more particularly as Drake is made ultimately to anchor in 38° 30', a
higher latitude than that in which his crew were benumbed with the cold.
We must either suppose that Dr. Johnson entirely misunderstood the
narrative, and intentionally represented Drake as continuing his voyage
northward in spite of the cold, and anchoring in a higher latitude than
where his men were so much discouraged by its severity, or that there is a
typographical error in the figures. The latter seems to be the more
probable alternative; and if, in order to correct this error, we may
reasonably have recourse to the authority from which he derived his
information as to the latitude of the port where Drake cast anchor, it is
to the World Encompassed, and not to the Famous Voyage, that we must
refer; for it is the World Encompassed which gives us 38° 30' as the
latitude of the convenient and fit harbour, whereas the Famous Voyage
sends Drake into a fair and good bay in 38°.

The dispute between Spain and Great Britain respecting the fur trade on
the north-west coast of America having awakened the attention of the
European powers to the value of discoveries in that quarter, a French
expedition was in consequence despatched in 1790, under Captain Etienne
Marchand, who, after examining some parts of the north-west coast of
America, concluded the circumnavigation of the globe in 1792. Fleurieu,
the French hydrographer, published a full account of Marchand's Voyage, to
which he prefaced an introduction, read before the French Institute in
July, 1797. In this introduction he reviews briefly the course of maritime
discovery in these parts, and states his opinion, without any
qualification, that Sir Francis Drake made the land on the north-west
coast of America in the latitude of 48 degrees, which no Spanish navigator
had yet reached. Mr. Greenhow (p. 223) speaks highly of Fleurieu's work,
though he considers him to have been careless in the examination of his
authorities. He observes, that "his devotion to his own country, and his
contempt for the Spaniards and their government, led him frequently to
make assertions and observations at variance with truth and justice." It
may be added, that at the time when he composed his introduction, the
relations of France and Great Britain were not of a kind to dispose him to
favour unduly the claims of British navigators.

The same train of events which terminated in the Nootka Convention, led to
a Spanish expedition under Galiano and Valdés, of which an account was
published, by order of the king of Spain, at Madrid, in 1802. The
introduction to it comprises a review of all the Spanish voyages of
discovery along the north-west coast, in the course of which it is
observed, that, from want of sufficient information in Spanish history,
certain foreign writers had undervalued the merit of Cabrillo, by
assigning to Drake the discovery of the coast between 38° and 48°;
whereas, thirty-six years before Drake's appearance on that coast,
Cabrillo had discovered it between 38° and 43°. A note appended to this
passage states:--"The true glory which the English navigator may claim
for himself is the having discovered the portion of coast comprehended
between the parallels of 43° and 48°; to which, consequently, the
denomination of New Albion ought to be limited, without interfering with
the discoveries of preceding navigators." (Relacion del Viage hecho por
las Goletas Sutil y Mexicana en el año de 1792. Introduccion, pp. xxxv.
xxxvi.)

To the same purport, Alexander von Humboldt, in his Essai Politique sur la
Nouvelle Espagne, says:--"D'après des données historiques certaines, la
dénomination de Nouvelle Albion devrait être restreinte à la partie de la
côte qui s'étend depuis les 43° aux 48°, ou du Cap de Martin de Aguilar, à
l'entrée de Juan de Fuca," (l. iii., c. viii.) And in another passage: "On
trouve que Francisco Gali côtoya une partie de l'Archipel du Prince de
Galles ou celui du Roi George (en 1582.) Sir Francis Drake, en 1578,
n'était parvenu que jusqu'aux 48° de latitude au nord du cap Grenville,
dans la Nouvelle Georgie."

The question of the northern limits of Drake's expedition has been rather
fully entered into on this occasion, because it is apprehended that
Drake's visit constituted a _discovery_ of that portion of the coast which
was to the north of the furthest headland which Ferrelo reached in 1543,
whether that headland were Cape Mendocino, or Cape Blanco; and because Mr.
Greenhow, in the preface to the second edition of his History of Oregon
and California, observes, that in the accounts and views there presented
of Drake's visit to the north-west coast, all who had criticised his work
were silent, or carefully omitted to notice the principal arguments
adduced by the author. We may conclude with observing, that on reviewing
the evidence it will be seen, that in favour of the higher latitude of 48°
we have a well authenticated account drawn up by the nephew of Sir Francis
Drake himself, from the notes of several persons who went the voyage,
confirmed by independent statements in two contemporary writers, Stow the
annalist, and Davis the navigator, and supported by the authority of Sir
W. Monson, who served with Drake in the Spanish wars after his return; and
on this side we find ranked the influential judgment of the ablest modern
writers who have given their attention to the subject, such as the
distinguished French hydrographer Fleurieu, the able author of the
Introduction to the Voyage of the Sutil and Mexicana, published by the
authority of the king of Spain, and the learned and laborious Alexander
von Humboldt. On the opposite side stands Hakluyt, and Hakluyt alone; for
Camden and Purchas both followed Hakluyt implicitly, and though they may
be considered to approve, they do not in any way confirm his account;
while Hakluyt himself has nowhere disclosed his sources of information,
and by the variation of the two editions of his work in the two most
important facts of the whole voyage, namely, the extreme limits southward
and northward respectively of Drake's expedition, he has indirectly made
evident the doubtful character of the information on which he relied, and
has himself abandoned the version of the story, which Camden and the
author of the Vie de Drach, have adopted upon his authority.




CHAPTER III.

ON THE DISCOVERY OF THE NORTH-WEST COAST OF AMERICA.

    The Voyage of Francisco de Gualle, or Gali, in 1584.--Of Viscaino, in
    in 1598.--River of Martin d'Aguilar.--Cessation of Spanish
    Enterprises.--Jesuit Missions in California in the 18th
    century.--Voyage of Behring and Tchiricoff in 1741.--Presidios in
    Upper California.--Voyage of Juan Perez in 1774; of Heceta and de la
    Bodega in 1775.--Heceta's Inlet.--Port Bucareli.--Bay of
    Bodega.--Hearne's Journey to the Coppermine River.--Captain James Cook
    in 1776.--Russian Establishments, in 1783, as far as Prince William's
    Sound; in 1787, as far as Mount Elias.--Expeditions from Macao, under
    the Portuguese flag, in 1785 and 1786; under that of the British East
    India Company in 1786.--Voyage of La Perouse in 1786.--King George's
    Sound Company.--Portland and Dixon, in 1786.--Meares and Tipping, in
    1786, under Flag of East India Company.--Duncan and Colnett in
    1787.--Captain Barclay discovers in 1787 the Straits in 48° 30', to
    which Meares gives the name of Juan de Fuca in 1788.--Prince of
    Wales's Archipelago.--Gray and Kendrick.


The Spaniards had long coveted a position in the East Indies, but the Bull
of Pope Alexander VI. precluded them from sailing eastward round the Cape
of Good Hope; they had, in consequence, made many attempts to find their
way thither across the Pacific. It was not, however, till 1564, that they
succeeded in establishing themselves in the Philippine Islands.
Thenceforth Spanish galleons sailed annually from Acapulco to Manilla, and
back by Macao. The trade winds wafted them directly across from New Spain
in about three months: on their return they occupied about double that
time, and generally reached up into a northerly latitude, in order to
avail themselves of the prevailing north-westers, which carried them to
the shores of California.

An expedition of this kind is the next historical record of voyages on
this coast, after Drake's visit. Hakluyt has published the navigator's own
account of it in his edition of 1600, as the "True and perfect Description
of a Voyage performed and done by Francisco de Gualle, a Spanish Captain
and Pilot, &c., in the Year of our Lord 1584." It purports to have been
translated out of the original Spanish, verbatim, into Low Dutch, by J. H.
van Lindschoten; and thence into English by Hakluyt. According to this
version of it, Gualle, on his return from Macao, made the coast of New
Spain "under seven-and-thirty degrees and a half." The author of the
"Introduction to the Journal of Galiano and Valdés" has substituted 57-1/2
for 37-1/2 degrees in Gualle's, or rather Gali's, account, without stating
any reason for it. Mr. Greenhow, indeed, refers to a note of that
author's, as intimating that he relied upon the evidence of papers found
in the archives of the Indies, but on examining the note in p. xlvi., it
evidently refers to two letters from the Archbishop of Mexico, then
Viceroy of New Spain, to the King, in reference to an expedition which he
proposed to intrust to Jayme Juan, for the discovery of the Straits of
Anian. It is true that the Archbishop is stated to have consulted Gali
upon his project, but the author of the "Introduction" specially alludes
to Lindschoten, as the person to whom the account of Gali's Voyage in 1582
was due, and refers to a French Translation of Lindschoten's work, under
the title of "Le Grand Routier de Mer," published at Amsterdam in 1638.
But Lindschoten's original work was written in the Dutch language, being
intitled "Reysgeschrift van de Navigatien der Portugaloysers in Orienten,"
and was published towards the end of the sixteenth century; and two
English translations of Gali's Voyage immediately appeared, one in Wolf's
edition of Lindschoten, in 1598; the other in the third volume of Hakluyt,
1598-1600. Lindschoten's own Dutch version was subsequently inserted in
Witsen's "Nord en Oost Tarterye," in 1692. All these latter accounts,
including the original, agree in stating seven-and-thirty degrees and a
half as the latitude where Gali discovered "a very high and fair land,
with many trees, and wholly without snow." The passage in the original
Dutch may be referred to in Burney's History of Voyages, vol. v., p. 164.
The French translation, however, which the author of the Introduction
consulted, gives 57-1/2°, the number being expressed in figures; but as
this seems to be the only authority for the change, it can hardly justify
it. "A high land," observes Captain Burney, "ornamented with trees, and
entirely without snow, is not inapplicable to the latitude of 37-1/2°, but
would not be credible if said of the American coast in 57-1/2° N., though
nothing were known of the extraordinary high mountains which are on the
western side of America in that parallel." It may be observed, that the
French translator has likewise misstated the course which Gali held in
reaching across from Japan to the American coast, by rendering "east and
east-by-north" in the original, as "east and north-east" in the French
version, making a difference of three points in the compass, which would
take him much farther north than his true course.

M. Eyriés, in the article "Gali," in the Biographie Universelle, puts
forward the same view of the cause of the variation of the latitude in the
account adopted by the author of the Introduction, namely, that it was
derived from the French translation which he consulted. The words in the
French version of the Grand Routier de Mer are; "Estans venus suivant ce
mesme cours près de la coste de la Nouvelle Espagne à la hauteur de 57
degrez et demi, nous approchasmes d'un haut et fort beau pays, orné de
nombre d'arbres et entièrement sans neige." M. Eyriés, however, has fallen
into a curious mistake, as he represents Gali to have made the identical
voyage which is the subject of the narrative, in company with Jayme Juan,
in execution of the project of the Viceroy of Mexico, which was never
accomplished, instead of his having made the account of the voyage for
him. That M. Eyriés is in error will be evident, not merely from the
account of the author of the Introduction, if more carefully examined, as
well as from the title and conclusion of the Voyage of Gali itself, as
given in Hakluyt's translation of the Dutch version of Lindschoten; but
also from this circumstance, which seems to be conclusive. M. de
Contreras, Archbishop of Mexico, was Viceroy of New Spain for the short
space of one year only, and the letters which he wrote to the King of
Spain, submitting his project of an expedition to explore the north-west
coast of America for his Majesty's approval, bore date the 22d January and
8th March, 1585. But Gali commenced his voyage from Acapulco in March
1582, and had returned by the year 1584, most probably before the
Archbishop had entered upon his office of Viceroy, certainly before he
submitted his plans to the King, which he had matured after consultation
with Gali. It is difficult to account for M. Eyriés' mistake, unless it
originated in an imperfect acquaintance with the Spanish language, as the
statement by the author of the Introduction is by no means obscure. Gali's
voyage was thus a private mercantile enterprise, and not an expedition
authorised and directed by the Government of New Spain, which the account
of M. Eyriés might lead his reader to suppose. It has acquired,
accidentally, rather more importance of late than it substantially
deserves, from the circumstance of its having been cited in support of the
Spanish title to the north-west coast of America; it has consequently been
thought to merit a fuller examination on the present occasion, as to its
true limits northward, which clearly fall short of those attained by the
Spaniards under Ferrelo, and very far short of those reached by the
British under Drake.

The next authentic expeditions on these coasts were those conducted by
Sebastian Viscaino. The growing rumours of the discovery of the passage
between the Atlantic and Pacific by the Straits of Anian, and the
necessity of providing accurate charts for the vessels engaged in the
trade between New Spain and the Philippine islands, induced Philip II. to
direct an expedition to be dispatched from Acapulco in 1596, to survey the
coasts. Nothing however of importance was accomplished on this occasion,
but on the succession of Philip III. in 1598, fresh orders were despatched
to carry into execution the intentions of his predecessor. Thirty-two
charts, according to Humboldt, prepared by Henri Martinez, a celebrated
engineer, prove that Viscaino surveyed these coasts with unprecedented
care and intelligence. "The sickness, however, of his crew, the want of
provisions, and the extreme severity of the season, prevented his
advancing further north than a headland in the 42d parallel, to which he
gave the name of Cape Sebastian." The smallest of his three vessels,
however, conducted by Martin d'Aguilar and Antonio Florez, doubled Cape
Mendocino, and reached the 43d parallel, where they found the mouth of a
river which Cabrillo has been supposed by some to have previously
discovered in 1543, and which was for some time considered to be the
western extremity of the long-sought Straits of Anian. The subsequent
report of the captain of a Manilla ship, in 1620, according to Mr.
Greenhow, led the world to adopt a different view, and to suppose that it
was the mouth of a passage into the northern extremity of the Gulf of
California; and accordingly, in maps of the later half of the seventeenth
century, California was represented to be an island, of which Cape Blanco
was the northernmost headland. After this error had been corrected by the
researches of the Jesuit Kuhn, in 1709, we find in the maps of the
eighteenth century, such as that of Guillaume de Lisle, published in Paris
in 1722, California a peninsula, Cape Blanco a headland in 45°, and near
it marked "Entrée découverte par d'Aguilar."

With Gali and Viscaino terminates the brilliant period of Spanish
discoveries along the north-west coast of America. The governors of New
Spain during the remainder of the seventeenth century and the greater part
of the eighteenth, confined their attention to securing the shores of the
peninsula of California against the armed vessels of hostile Powers,
which, after the discovery of the passage round Cape Horn in 1616, by the
Dutch navigators Lemaire and Van Schouten, carried on their depredations
in the Pacific with increasing frequency. The country itself of
California, was in 1697 subjected, by a royal warrant, to an experimental
process of civilisation at the hands of the Jesuits, which their success
in Paraguay emboldened them to undertake. In about sixty years a chain of
missions was established along the whole eastern side of California, and
the followers of Loyola may be considered to have ruled the country, till
the decree issued by Charles III. in 1767, for the immediate banishment of
the society from the Spanish dominions, led to their expulsion from the
New World. During this long period, the only expedition of discovery that
ventured into these seas was that which Behring and Tchiricoff led forth
in 1741 from the shores of Kamtchatka, under the Russian flag. Behring's
own voyage southward is not supposed to have extended beyond the 60th
parallel of north latitude, where he discovered a stupendous mountain,
visible at the distance of more than eighty miles, to which he gave the
name of Mount St. Elias, which it still bears. The account is derived from
the journal of Steller, the naturalist of Behring's ship, which Professor
Pallas first published in 1795, as Behring himself died on his voyage
home, in one of the islands of the Aleutian Archipelago, between 54-1/2
and 55-1/2 degrees north latitude. Here his vessel had been wrecked, and
the island still bears the name of the Russian navigator. Tchiricoff, on
the other hand, advanced further eastward, and the Russians themselves
maintain that he pushed his discoveries as far south as the 49th parallel
of north latitude, (Letter from the Chevalier de Poletica, Russian
Minister, to the Secretary of State at Washington, February 28, 1822, in
British and Foreign State Papers, 1821-22, p. 483;) but this has been
disputed. Mr. Greenhow considers, from the description of the latitude and
bearings of the land discovered by him, that it must have been one of the
islands of the Prince of Wales's Archipelago, in about 56°.

The discoveries of the Russians, of which vague rumours had found their
way into Europe, and of which a detailed account was given to the Academy
of Sciences at Paris, in 1750, by J. N. de l'Isle, the astronomer, on his
return from St. Petersburg, revived the attention of Spain to the
importance of securing her possessions in the New World against the
encroachments of other Powers. It was determined that the vacant coasts
and islands adjacent to the settled provinces of New Spain should be
occupied, so as to protect them against casual expeditions, and that the
more distant shores should be explored, so as to secure to the crown of
Spain a title to them, on the grounds of first discovery. With this object
"the Marine Department of San Blas" was organised, and was charged with
the superintendence of all operations by sea. Its activity was evinced by
the establishment of eight "Presidios" along the coast in Upper
California, in the interval of the ten years immediately preceding 1779.
Of these San Diego, in 32° 39' 30", was the most southerly; San Francisco,
in 38° 48' 30", the most northerly. During the same period, three
expeditions of discovery were dispatched from San Blas. The earliest of
these sailed forth in January, 1774, under the command of Juan Perez, but
its results were not made known before 1802, when the narrative of the
expedition of the Sutil and Mexicana was published, as already stated.
According to this account, Perez, having touched at San Diego and
Monterey, steered out boldly into the open sea, and made the coast of
America again in 53° 53' north. In the latitude of 55° he discovered a
headland, to which he gave the name of Santa Margarita, at the northern
extremity of Queen Charlotte's Island. The strait which separates this
island from that of the Prince of Wales, is henceforward marked in Spanish
maps as the Entrada de Perez. A scanty supply of water, however, soon
compelled him to steer southward, and he cast anchor in the Bay of San
Lorenzo in 49° 30', in the month of August, and for a short time engaged
in trade with the natives. Spanish writers identify the bay of San Lorenzo
with that to which Captain Cook, four years afterwards, gave the name of
Nootka Sound. Perez was prevented from landing on this coast by the stormy
state of the weather, and his vessel was obliged to cut her cables, and
put to sea with the loss of her anchors. He is supposed, in coasting
southward, to have caught sight of Mount Olympus in 47° 47'. Having
determined the true latitude of C. Mendocino, he returned to San Blas,
after about eight months' absence. Unfortunately for the fame of Perez,
the claim now maintained for him to the discovery of Nootka Sound, was
kept secret by the Spaniards till after general consent had assigned it to
Captain Cook. The Spaniards have likewise advanced a claim to the
discovery of the Straits of Fuca, upon the authority of Don Esteban José
Martinez, the pilot of the Santiago, Perez' vessel; who, according to Mr.
Greenhow, announced many years afterwards that he remembered to have
observed a wide opening in the land between 48° and 49°: and they have
consequently marked in their charts the headland at the entrance of the
straits as Cape Martinez. No allusion, however, is made to this claim in
the Introduction to the Voyage of the Sutil and Mexicana, nor in
Humboldt's New Spain.

In the following year (1775) a second expedition sailed from San Blas
under the orders of Don Bruno Heceta, Don Juan de Ayala, and Don Juan de
la Bodega y Quadra. The Spanish government observed their usual prudent
silence as to the results of this expedition, but the journal of Antonio
Maurelle, "the second pilot of the fleet," who acted as pilot in the
Senora, which Bodega commanded, fell into the hands of the Hon. Daines
Barrington, who published an English translation of it in his
Miscellanies, in 1781. There are four other accounts in MS. amongst the
archives at Madrid. From one of these, the journal of Heceta himself, a
valuable extract is given in Mr. Greenhow's Appendix. Their first
discovery north of C. Mendocino, was a small port in 41° 7', to which they
gave the name of La Trinidad, and where they fixed up a cross, which
Vancouver found still remaining in 1793. They then quitted the coast, and
did not make the land again till they reached 48° 26', whence they
examined the shore in vain towards the south for the supposed Strait of
Fuca, which was placed in Bellin's fanciful chart, constructed in 1766,
between 47° and 48°. Having had seven of the Senora's men massacred by the
natives in the latitude of 47° 20', where twelve years later a portion of
the crew of the Imperial Eagle were surprised and murdered, they resumed
their voyage northward, though Heceta, owing to the sickness of his crew,
was anxious to return. A storm soon afterwards separated the two vessels,
and Heceta returned southward. On his voyage homewards he first made the
land on the 10th of August, in 49° 30', on the south-west side of the
great island now known as Vancouver's Island, and passing the part which
Perez had visited, came upon the main land below the entrance of the
Straits of Fuca. On the 17th of August, as he was sailing along the coast
between 46° 40' and 46° 4', according to Heceta's own report, or in 46° 9'
according to the Introduction to the Voyage of the Sutil and Mexicana,
Heceta discovered a great bay, the head of which he could no where
recognise. So strong, however, were the currents and eddies of the water,
that he believed it to be "the mouth of some great river, or passage to
another sea." He was disposed, according to his own statement, to conceive
it to be the same with the Straits of Fuca, as he was satisfied no such
straits existed between 47° and 48°, where they were laid down in the
charts. He did not, however, venture to cast anchor; and the force of the
currents, during the night, swept him too far to leeward to allow him to
examine it any further. Heceta named the northern headland of the bay, C.
San Roque; and the southern headland, C. Frondoso; and to the bay itself
he gave the name of the Assumption, though, in the Spanish charts,
according to Humboldt, it is termed "l'Ensenada de Ezeta," Heceta's Inlet.
Heceta likewise gave the name of C. Falcon to a headland in 45° 43', known
since as C. Lookout; and continuing his course to the southward along the
coast, reached Monterey on August 30th.

De la Bodega, in the mean time, had stretched out to 56°, when he
unexpectedly made the coast, 135 leagues more to the westward than
Bellin's chart had led him to expect. He soon afterwards discovered the
lofty conical mountain in King George III.'s Archipelago, to which he gave
the name of San Jacinto, and which Cook subsequently called Mount
Edgecumb, and having reached the 58th parallel, turned back to examine
that portion of the coast, where the Rio de los Reyes was placed in the
story of the adventures of Admiral Fonte. Having looked for this fabulous
stream in vain, they landed and took possession of the shores of an
extensive bay, in 55° 30', in the Prince of Wales' Archipelago, which they
named Port Bucareli, in honour of the Viceroy. Proceeding southward, they
observed the Entrada de Perez, north of Queen Charlotte's Island; but,
though coasting from 49° within a mile of the shore, according to
Maurelle's account, they overlooked the entrance of Fuca's Straits. A
little below 47° unfavourable winds drove them off the coast, which they
made once more in 45° 27'; from which parallel they searched in vain to
42° for the river of Martin d'Aguilar. In the latitude of 38° 18' they
reached a spacious and sheltered bay, which they had imagined to be Port
San Francisco; but it proved to be a distinct bay, not yet laid down in
any chart, so De la Bodega bestowed his own name upon it, having noted in
his journal that it was here that Sir Francis Drake careened his ship.
Vancouver, however, considered the bay of Sir Francis Drake to be distinct
from this bay of Bodega, as well as from that of San Francisco.

Expeditions had been, in the mean time, made by direction of the Hudson's
Bay Company, across the northern regions of North America, to determine,
if possible, the existence of the supposed northern passage between
Hudson's Bay and the Pacific Ocean. Mr. Samuel Hearne, one of the
Company's agents, in 1771, in the course of one of these journeys,
succeeded in tracing a river, since known as the Coppermine River, to a
sea, where the flux and reflux of the tide was observed. Hearne calculated
the mouth of this river to be in about 72° north latitude; and he had
assured himself, by his own observations, that no channel connecting the
two seas extended across the country which he had traversed. It appears
that a parliamentary grant of 20,000_l._ had been voted, in 1745, by the
House of Commons, for the discovery of a north-west passage, through
Hudson's Bay, by ships belonging to his Britannic Majesty's subjects; and
in 1776, this reward was further extended to the ships of his Majesty,
which might succeed in discovering a northern passage between the two
oceans, in any direction or under any parallel north of 52°. The Lords of
the British Admiralty, in pursuance of Hearne's report, determined on
sending out an expedition to explore the north-easternmost coast of the
Pacific; and Captain James Cook, who had just returned from an expedition
in the southern hemisphere, was ordered, in 1776, to proceed round the
Cape of Good Hope to the coast of New Albion, in 45 degrees. He was
besides directed to avoid all interference with the establishments of
European Powers: to explore the coast northward, after reaching New
Albion, up to 65°; and there to commence a search for a river or inlet
which might communicate with Hudson's Bay. He was further directed to take
possession, in the name of his sovereign, of any countries which he might
discover to be uninhabited; and if there should be inhabitants in any
parts not yet discovered by other European powers, to take possession of
them, with the consent of the natives. No authentic details of any
discoveries had been made public by the Spaniards since the expedition of
Viscaino, in 1602, though rumours of certain voyages along the north-west
coast of America, made by order of the viceroy of New Spain, in the two
preceding years, had reached England shortly before Cook sailed; but the
information was too vague to afford Cook any safe directions.

The expedition reached the shores of New Albion in 44° north, and thence
coasted at some distance off up to 48°. Cook arrived at the same
conclusion which Heceta had adopted, that between 47° and 48° north there
were no Straits of Fuca, as alleged. He seems to have passed unobserved
the arm of the sea a little further northward, having most probably struck
across to the coast of Vancouver's Island, which trends north-westward.
Having now reached the parallel of 49° 30', he cast anchor in a spacious
bay, to which he gave the name of King George's Sound; but the name of
Nootka, borrowed from the natives, has since prevailed. It has been
supposed, as already stated, that Nootka Sound was the bay in which Perez
cast anchor, and which he named Port San Lorenzo; and that the implements
of European manufacture, which Captain Cook, to his great surprise, found
in the possession of one of the natives, were obtained on that occasion
from the Spaniards. The first notification, however, of the existence of
this important harbour, dates from this visit of Captain Cook, who
continued his voyage northward up to the 59th parallel, and from that
point commenced his survey of the coast, in the hope of discovering a
passage into the Atlantic. It is unnecessary to trace his course onward.
Although Spanish navigators claim to have seen portions of the coast of
North America between the limits of 43° and 55° prior to his visit, yet
their discoveries had not been made public, and their observations had
been too cursory and vague to lead to any practical result. Captain Cook
is entitled, beyond dispute, to the credit of having first dispelled the
popular errors respecting the extent of the continents of America and
Asia, and their respective proximity: and as Drake, according to Fletcher,
changed the name of the land south of Magellan's Straits from Terra
Incognita to Terra nunc bene Cognita, so Cook was assuredly entitled to
change the name of the North Pacific Sea from "Mare Incognitum" to "Mare
nunc bene Cognitum."

On the return of the vessels engaged in this expedition to England, where
they arrived in October, 1780, it was thought expedient by the Board of
Admiralty to delay the publication of an authorised account, as Great
Britain was engaged in hostilities with the United States in America, and
with France and Spain in the Old World. The Russians in the mean time
hastened to avail themselves of the information which they had obtained
when Captain King, on his way homewards by China, touched at the harbor of
Petropawlosk, and an association was speedily formed amongst the fur
merchants of Siberia and Kamtchatka to open a trade with the shores of the
American continent. An expedition was in consequence dispatched in 1783,
for the double purpose of trading and exploring, and several trading posts
were established between Aliaska and Prince William's Sound. Mr. Greenhow
(p. 161) assigns to this period the Russian establishment on the island of
Kodiak, near the entrance of the bay called Cook's Bay, but the Russian
authorities refer this settlement to a period as remote as 1763. (Letter
from the Chevalier de Poletica to the Secretary of State at Washington,
28th February, 1822. British and Foreign State Papers, 1821-22, p. 484.)
The Russian establishments seem to have extended themselves in 1787, and
the following year as far as Admiralty Bay, at the foot of Mount Elias.
The publication, however, of the journals of Cook's expedition, which took
place in 1784-5, soon introduced a host of rival traders into these seas.
Private expeditions were dispatched from Macao, under the Portuguese flag,
in 1785 and 1786, and under the flag of the East India Company in 1786. In
the month of June of this latter year, La Perouse, in command of a French
expedition of discovery, arrived off the coast, and cast anchor in a bay
near the foot of Mount Fairweather, in about 59°, which he named Port des
Français. He thence skirted the coast southward past Port Bucareli, the
western shores of Queen Charlotte's Island, and Nootka, and reached
Monterey in September, where having stayed sixteen days, he bade adieu to
the north-west coast of America. La Perouse seems first to have suspected
the separation of Queen Charlotte's Island from the continent, but as no
account of the results of this expedition was published before 1797, other
navigators forestalled him in the description of nearly all the places
which he had visited.

In the August of 1785, in which year La Perouse had sailed, an
association in London, styled the King George's Sound Company, dispatched
two vessels under the command of Captains Dixon and Portlock, to trade
with the natives on the American coast, under the protection of licences
from the South Sea Company, and in correspondence with the East India
Company. They reached Cook's River in July 1786, where they met with
Russian traders, and intended to winter in Nootka Sound, but were driven
off the coast by tempestuous weather to the Sandwich Isles. Returning
northward in the spring of 1787, they found Captain Meares, with his
vessel the Nootka, frozen up in Prince William's Sound. Meares had left
Calcutta in January 1786, whilst his intended consort, the Sea Otter,
commanded by Captain Tipping, had been dispatched to Malacca, with
instructions to proceed to the north-west coast of America; and there
carry on a fur trade in company with the Nootka. Both these vessels sailed
under the flag of the East India Company. Meares, after having with some
difficulty got clear of the Russian establishment at Kodiak, reached
Cook's River soon after Dixon and Portlock had quitted it, and proceeded
to Prince William's Sound, where he expected to meet the Sea Otter; but
Captain Tipping and his vessel were never seen by him again after leaving
Calcutta, though Meares was led by the natives to suppose that his consort
had sailed from Prince William's Sound a few days before his arrival. He
determined, however, to pass the winter here, in preference to sailing to
the Sandwich Isles, lest he should be prevented returning to the coast of
America. Here indeed the severity of the cold, coupled with scurvy,
destroyed more than half of his crew, and the survivors were found in a
state of extreme distress by Dixon and Portlock, on their return to the
coast in the following spring.

We have now reached a period when many minute and detached discoveries
took place. Prince William's Sound and Nootka appear to have been the two
great stations of the fur trade, and it seems to have been customary, in
most of the trading expeditions of this period, that two vessels should be
dispatched in company, so as to divide the labor of visiting the trading
posts along the coast. Thus, whilst Portlock remained between Prince
William's Sound and Mount St. Elias, Dixon directed his course towards
Nootka, and being convinced on his voyage, from the reports of the
natives, that the land between 52° and 54° was separated from the
continent, as La Perouse had suspected, he did not hesitate to call it
Queen Charlotte's Island, from the name of his vessel, and to give to the
passage to the northward of it, which is marked on Spanish maps as the
Entrada de Perez, the name of Dixon's Entrance. Before Dixon and Portlock
quitted these coasts, in 1787, other vessels had arrived to share in the
profits of the fur trade. Amongst these the Princess Royal and the Prince
of Wales had been despatched from England, by the King George's Sound
Company, under command of Captains Duncan and Colnett; whilst the Imperial
Eagle, under Captain Barclay, an Englishman, displayed in those seas for
the first time the flag of the Austrian East India Company. To a boat's
crew belonging to this latter vessel Captain Meares assigns the discovery
of the straits in 48° 30', to which he himself gave in the following year
the name of Juan de Fuca, from the old Greek pilot, whose curious story
has been preserved in Purchas' Pilgrims. (Introduction to Meares' Voyages,
p. lv.) Meares had succeeded in returning to Macao with the Nootka, in
October, 1787. In the next year he was once more upon the American coast,
as two other vessels, named the Felice and Iphigenia, were despatched from
Macao, under Meares and Captain Douglas respectively, the former being
sent direct to Nootka, the latter being ordered to make for Cook's River,
and thence proceeding southward to join her consort. Meares, in his
Observations on a North-west Passage, states that Captain Douglas
anticipated Captain Duncan, of the Princess Royal, in being the first to
sail through the Channel which separates Queen Charlotte's Island from the
main land, and thereby confirming the suppositions of La Perouse and
Dixon. Captain Duncan, however, appears at all events to have explored
this part of the coast more carefully than Douglas had done, and he first
discovered the group of small islands, which he named the Prince of Wales'
Archipelago. The announcement of this discovery seemed to some persons to
warrant them in giving credit once more to the exploded story of Admiral
Fonte's voyage, and revived the expectation of discovering the river,
which the admiral is described to have ascended near 53° into a lake
communicating with the Atlantic Ocean. It is almost needless to observe,
that these expectations have never been realised.

The names of several vessels have been omitted in this brief summary,
which were engaged in the fur trade subsequently to the year 1785. Two
vessels, however, require notice,--the Washington under Captain Gray, and
the Columbia under Captain Kendrick, which were despatched from Boston,
under the American flag, in August, 1787. Captain Gray reached Nootka
Sound, on Sept. 17, 1788, and found Meares preparing to launch a small
vessel called the North-west America, which he had built there. The
Columbia does not appear to have joined her consort till after the
departure of Meares and his companions. Meares himself set sail in the
Felice for China, on Sept. 23, whilst the Iphigenia proceeded with the
North-west America to the Sandwich Islands, and wintered there. In the
spring of 1789, the two latter vessels returned to Nootka Sound, and found
the Columbia had joined her consort the Washington, and both had wintered
there. The North-west America was despatched forthwith on a trading
expedition northward, whilst the Iphigenia remained at anchor in Nootka
Sound.

Events were now at hand which were attended with very important
consequences in determining the relations of Spain and Great Britain
towards each other in respect to the trade with the natives on their
coasts, and to the right of forming settlements among them. These will
fitly be reserved, as introductory to the Convention of the Escurial,
which will be discussed in a subsequent Chapter.




CHAPTER IV.

ON THE PRETENDED DISCOVERIES OF THE NORTH-WEST COAST.

    Memoir of Lorenzo Ferrer Maldonado, in 1588.--Voyage of the
    Descubierta and Atrevida, in 1791.--Tale of Juan de Fuca, in
    1592.--Voyages of Meares, Vancouver, and Lieutenant Wilkes.--Letter of
    Admiral Bartolemé Fonte or de Fuentes, in 1640.--Memoir of J. N. de
    l'Isle and Ph. Buache, in 1750.--California discovered to be a
    Peninsula in 1540; reported to be an Island in 1620; re-explored by
    the Jesuit Kuhn and others, in 1701-21.--Maps of the sixteenth and
    seventeenth Centuries.--Fonte's Letter, a jeu-d'esprit of Petiver, the
    Naturalist.


The general belief in the existence of a North-west passage from the
Atlantic to the Pacific Ocean in the direction of Gaspar de Cortereal's
reported Straits of Anian, led to the circulation of many false accounts
of the discovery of the desired channel. The most celebrated fictions of
this class seem to have originated with individuals who hoped to secure,
through their pretended knowledge and experience, future employment, as
well as immediate emolument. A memoir of this kind is reported to have
been laid before the Council of the Indies at Seville, in 1609, by Lorenzo
Ferrer Maldonado, who professed to have sailed in 1588 from Lisbon to the
coast of Labrador, and thence into the South Sea through a channel in 60°
north latitude, corresponding to the Strait of Anian, according to ancient
tradition. He petitioned, in consequence, that he might be rewarded for
his services, and be entrusted with an expedition to occupy the Strait of
Anian, and defend the passage against other nations. His cotemporaries,
according to the author of the Introduction to the Voyage of the Sutil and
Mexicana, were men of more judgment and intelligence than some of the
writers of the 18th century. The former at once discovered, by personal
examination of the author, the fictitious character of his narrative, and
rejected his proposal. Two copies of this memoir are supposed to exist;
one of these being preserved in the library of the Duke of Infantado at
Madrid, the other in the Ambrosian Library at Milan. The former of these
is considered by the author of the Introduction to be certainly a
cotemporaneous, and perhaps the original, copy of the memoir: the
Ambrosian manuscript, on the other hand, has been pronounced, in an
article in the London Quarterly Review for October, 1816, to be "the
clumsy and audacious forgery of some ignorant German," from the
circumstance of fifteen leagues to the degree being used in some of the
computations. To the same purpose Capt. James Burney, in the fifth volume
of his Voyages, published in 1817, observes, that "it must not be omitted
that the reckoning in the narrative is in German leagues. It is said,
'from the latitude of 64° you will have to sail 120 leagues to the
latitude of 72°, which corresponds with the German league of 15 to a
degree, and not with the Spanish league of 17-1/2 to a degree, by which
last the early Spanish navigators were accustomed to reckon.' From this
peculiarity in the narrative it may be conjectured, that the real author
was a Fleming, who probably thought he could not better advance his
spurious offspring, than by laying it at the door of a man who had
projected to invent a compass without variation," as Maldonado professed
to do to the Council of the Indies, according to Antonio Leo in his
Bibliotheca Indica.

Allusions had been occasionally made to this work by Spanish writers in
the 17th century, amongst others by De Luque, the author of the
"Establecimientos Ultramarinos de las Naceones Europeas." It was not,
however, till so late a period as 1790 that the attention of men of
science was drawn to the Madrid manuscript by J. N. Buache, the geographer
of the King of France, in a paper read before the Academy of Sciences at
Paris in that year. Captain Burney states, that the manuscript had been
brought to notice shortly before by M. de Mendoza, a captain in the
Spanish navy, who was employed in forming a collection of voyages for the
use of that service. M. Buache, who had succeeded D'Anville as Geographer
Royal in 1768, followed the geographical system of Ph. Buache, his
relative and predecessor, and, like him, clung fondly to questionable
discoveries. He had been employed to prepare instructions for the
expedition of La Perouse, and thus his attention had been especially drawn
to voyages of discovery on the north-west coast of America. He declared
himself in his memoir so strongly in favor of the genuineness of the
manuscript, and of the good faith of Maldonado, that the Spanish
government, in order that the question might be definitively set at rest,
directed its archives to be searched, and the manuscript in the library of
the Duke of Infantado to be carefully examined, and at the same time gave
orders that the corvettes Descubierta and Atrevida, which were fitting out
at Acapulco for a voyage round the world, should explore the coasts and
port which Maldonado pretended to have discovered in the South Sea. The
archives, however, furnished ample evidence of the correctness of the
ancient opinion that Maldonado was an impostor, and the expedition of the
corvettes, which sailed in 1791, confirmed this fact beyond dispute. A
memoir to that effect, founded upon their observations, was published in
1797, by Don Ciriaco Cevallos, who had accompanied the expedition, to
prove the utter falsity of Maldonado's story.

It was, however, once more revived by the discovery of the Ambrosian
manuscript in 1812 by Carlo Amoretti. This is said to give a more succinct
account than the Madrid document, and it has been thought by some to be an
abridgment of it. The article in the Quarterly Review above alluded to was
occasioned by its appearance, and to the curious will furnish ample
information. The Milan account of the voyage may be referred to in the
fifth volume of Burney's History of Voyages. The Madrid document will be
found in Barrow's Chronological History of Voyages in the Arctic Regions.

A much more plausible narrative was published in 1625, in the third volume
of "The Pilgrims," by Purchas, the successor of Hakluyt as the historian
of maritime enterprises. It is entitled "A Note made by me, Michael Lock
the elder, touching the Strait of Sea, commonly called Fretum Anian, in
the South Sea, through the North-west Passage of Meta Incognita." The
writer purported to give an account of what had been communicated to him
at Venice, in April, 1596, by an ancient Greek pilot, commonly called Juan
de Fuca, but properly named Apostolos Valerianus, who represented himself
to have been taken in a Spanish ship by Captain Candish, and to have
thereby lost 60,000 ducats, and to have been at another time sent by the
Viceroy of Mexico to discover and fortify the Straits of Anian. His tale
was to this effect: "That shortly afterwards, having been sent again, in
1592, by the Viceroy of Mexico, with a small caravel and pinnace, armed
with mariners only, he followed the coast of North America until he came
to the latitude of 47°, and there finding that the land trended east and
north-east, with a broad inlet of sea between 47 and 48 degrees of
latitude, he entered thereinto, sailing therein more than twenty days, and
found that land trending still sometimes north-west and north-east and
north, and also east, and south-eastward, and very much broader sea than
was at the said entrance, and that he passed by divers islands in that
sailing. And that at the entrance of this said strait, there is _on the
north-west coast_ thereof a great headland or island, with an exceeding
high pinnacle or spired rock, like a pillar, thereupon.

"Also, he said, he went on land in divers places, and there he saw some
people on land, clad is beasts' skins; and that the land is _very
fruitful, and rich of gold, silver, pearls, and other things, like new
Spain_.

"And also, he said, that he being entered thus far into the said strait,
and being _come into the North Sea_ already, and finding the sea wide
enough everywhere, and to be about _thirty or forty leagues wide in the
mouth of the straits, where he entered_, he thought that he had now well
discharged his office, and that not being armed to resist the force of the
savage people that might happen, he therefore set sail, and returned
homewards again towards New Spain, where he arrived at Acapulco, anno
1592, hoping to be rewarded by the Viceroy for the service done in the
said voyage.

"Also, he said that, after coming to Mexico, he was greatly welcomed by
the Viceroy, and had promises of great reward; but that having sued there
for two years, and obtained nothing to his content, the Viceroy told him
that he should be rewarded in Spain of the King himself very greatly, and
willed him therefore to go to Spain, which voyage he did perform.

"Also, he said, that when he was come into Spain, he was welcomed there at
the King's court; but after long suit there also, he could not get any
reward there to his content. And therefore at length he stole away out of
Spain, and came into Italy, to go home again and live among his own
kindred and countrymen, he being very old.

"Also, he said, that he thought the cause of his ill reward had of the
Spaniards, to be for that they did understand very well that the _English
nation had now given over all their voyages for discovery of the
North-west Passage_, wherefore they need not fear them any more to come
that way into the South Sea, and therefore they needed not his service
therein any more.

"Also, he said, that _understanding the noble mind of the Queen of
England_, of her wars against the Spaniards, and hoping that her majesty
would _do him justice for his goods lost_ by Captain Candish, he would be
content to go into England, _and serve her majesty in that voyage for the
discovery perfectly of the north-west passage into the South Sea_, if she
would furnish him with only one ship of forty tons burthen and a pinnace,
and that he would perform it in thirty days time from one end to the other
of the straits, and he wished me so to write to England."

As this asserted discovery was one upon which the Spanish commissioner, in
the negotiations antecedent to the Treaty of the Floridas, relied to
support the claim of the Spanish crown to the north-west coast of America,
and as authors of late whose opinions are entitled to respect, such as
Fleurieu, and Mr. Greenhow, have inclined to admit the general truth of
the account, the substantial part of it has been quoted at full length, as
it appears both that Fuca's narrative, if we admit it to be genuine, does
not accord, in respect to any substantial fact, with the authentic reports
of subsequent voyages, and that the object of the fiction is patent on the
face of the story.

The object of the Greek pilot was evidently to obtain, upon the faith of
his narrative, employment from the Queen of England; and as, from his own
statement, he was aware that the spirit of discovery was for the moment
languid amongst the English nation, he represented the country as "very
fruitful and rich of gold, silver, pearls, and other things, like New
Spain." This exaggeration of the probable profits of the undertaking would
not perhaps alone disentitle the narrator to credit in respect to the
other circumstances of his voyage, though his integrity in making the
communication might thereby become open to question: but when we look to
the asserted facts of his voyage, the truth or falsehood of which must be
conclusive as to the character of the narrative itself, we find that they
do not correspond in any respect with ascertained facts. The straits to
which Meares gave the name of Juan de Fuca in 1788, are between the 48th
and 49th parallel. Mr. Greenhow considers that the difference in the
position is sufficiently slight as to be within the limits of supposable
error on the part of the Greek pilot; and certainly, if this were the only
difficulty, it might not be conclusive against his veracity. But the
straits which he professed to have discovered were from 30 to 40 leagues
wide at the mouth where he entered, and according to his story he sailed
through them into the North Sea, and upon the faith of this he offered to
perfect his discovery of the north-west passage into the South Sea for the
Queen of England, and to perform it in thirty days time from one end to
the other of the straits. Now this description is so totally at variance
with the real character of any straits on the west coast of America, that
the happy coincidence of trifling circumstances can hardly be considered
sufficient to turn the scale in its favor. Amongst the latter, the
existence of a pillar has been alleged, as corresponding with De Fuca's
account. Meares, for instance, on approaching the straits from the north,
speaks "of a small island, situated about two miles _from the southern
land_, that formed the entrance of this strait, near which we saw a very
remarkable rock, that wore the form of an obelisk, and stood at some
distance from the island," (p. 153,) which, in his Observations on a
North-west Passage (p. lxi.) he seems to consider to be the pinnacle rock
of De Fuca; but unfortunately De Fuca has placed his "island with an
exceeding high pinnacle or spiral rock" _on the north-west coast_, at the
entrance of the strait, instead of on the southern shore. Vancouver, on
entering the straits, failed himself to recognize any rock as
corresponding to the pinnacle rock which Mr. Meares had represented, but
he observes that a rock within Tatooche's Island, _on the southern side_
of the entrance, which is united to the main land by a ledge of rocks,
over which the sea breaks violently, was noticed, and supposed to be that
represented as De Fuca's pinnacle rock: "this, however, was visible only
for a few minutes, from its being close to the shore of the main-land,
instead of lying in the entrance of the straits, nor did it correspond
with that which has been so described." On the other hand, Lieutenant
Wilkes, in his Account of the United States Exploring Expedition, says,
"In leaving De Fuca's Straits, I anxiously watched for De Fuca's Pillar,
and soon obtained a sketch of it;" but he does not state whether he meant
the pillar which Meares observed on the southern side, and called De
Fuca's Pillar, or one which, according to the Greek pilot, should have
formed a prominent object on the north-western coast of the strait.

It is not unimportant to observe, that there is no Spanish writer who
speaks of De Fuca or his discovery: that neither in any private archives
in Spain, nor in the public archives of the Indies at Seville, is there
any notice of this celebrated navigator or of his important expedition,
which the author of the Introduction to the Voyage of the Sutil and
Mexicana observes is the more remarkable, from the great number of other
voyages and expeditions of the same period preserved in the archives,
which have escaped the notice of contemporary writers; and, what is
perhaps still more conclusive, that Humboldt, in his account of New Spain,
(l. iii., ch. viii.,) states, that in spite of all his researches he had
not been able to find throughout New Spain a single document in which the
name of the pilot De Fuca occurs.

The whole of these latter observations apply with equal force to the
voyage of Admiral Bartolemé Fonte or de Fuentes, which purposes to have
been performed in 1640; the narrative, however, did not make its
appearance till 1708, when it was published in London, in two parts, in
"The Monthly Miscellany, or Memoirs of the Curious." The mode in which it
was ushered into public notice would alone be sufficient to expose it to
considerable suspicion, and the gross absurdities with which it is replete
would have at once exempted it from any serious criticism, had not the
Spanish commissioner, in the negotiations already alluded to, and of which
a full account will be given in a subsequent place, rested upon it the
territorial title of Spain to the north-west coast, up to 55° of north
latitude. Fonte, according to the narrative, sailed with four vessels from
Callao into the North Pacific, with orders from the Viceroy of Peru to
intercept certain vessels which had sailed from Boston in New England,
with the object of exploring a north-west passage. On arriving at C. St.
Lucas, at the south point of California, he despatched one of his vessels
"to discover whether California was an island or not, (for before, it was
not known whether it was an island or a peninsula.") He thence coasted
along California to 26° of north latitude, and having a steady gale from
the S.S.E., in the interval between May 26, and June 14, "he reached the
River los Reyes in 53° of north latitude, not having occasion to lower a
top-sail in sailing 866 leagues N.N.W., 410 leagues from Port Abel to C.
Blanco, 456 leagues to Rio de los Reyes, having sailed about 260 leagues
in crooked channels, amongst islands named the Archipelagus de St.
Lazarus, where his ships' boats always sailed a mile a-head, sounding, to
see what water, rocks, and sands there was." "They had two Jesuits with
them, that had been on their mission at 66° of N. L., and had made
curious observations." Fonte ascended the Rio de los Reyes in his ships to
a large lake, which he called Lake Belle. Here, he says, he left his
vessels and proceeded down another river, passing eight falls, in all 32
feet perpendicular, into a large lake which he named De Fonte. Thence he
sailed out through the Estrecho de Ronquillo into the sea, where they
found a large ship where the natives had never seen one before, from a
town called Boston, the master of which, Captain Shaply, told him that his
owner was "a fine gentleman, and major-general of the largest colony in
New England, called the Maltechusets." Having exchanged all sorts of
civilities and presents with this gentleman, the admiral went back to his
ships in Lake Belle, and returned by the Rio de los Reyes to the South
Sea. One of his officers had in the mean time ascended another river,
which he named Rio de Haro, in the lake Velasco, in 61°, whence he sailed
in Indian boats as far north as 77°. Here he ascertained that there was no
communication out of the Spanish or Atlantic Sea by Davis' Straits, from
one of his own seamen, who had been conducted by the natives to the head
of Davis' Strait, which terminated in a fresh lake of about 30 miles in
circumference, in 80° N. L. He himself in the meantime had sailed as far
north as 79°, and then the land trended north, and the ice rested on the
land. The result of this expedition was, that they returned home, "having
found there was no passage into the South Seas by what they call the
North-west Passage."

Such is the substance of this rather dull story, which may be read in full
in the third volume of Burney's History of Voyages in the South Sea, p.
190. Mr. Greenhow (p. 84) observes, that "the account is very confused and
badly written, and is filled with absurdities and contradictions, which
should have prevented it from receiving credit at any time since its
appearance: yet, as will be shown, it was seriously examined and defended,
so recently as in the middle of the last century, by scientific men of
great eminence, and some faith continued to be attached to it for many
years afterwards."

Amongst its defenders the most conspicuous were J. N. de l'Isle, the
brother of William de l'Isle, and Philippe Buache, the geographer of the
French King, the predecessor of J. N. Buache, who has already been
mentioned as the author of a memoir in defence of Maldonado's narrative.
De l'Isle presented to the Academy of Sciences, in 1750, a memoir "sur
les nouvelles découvertes au nord de la mer du Sud," with a map prepared
by Ph. Buache, to represent these discoveries. The communication was in
other respects of great importance, as it contained the first authentic
account of the discoveries lately made by Behring and Tchiricoff, in 1741.
It is not stated from what source De l'Isle derived the copy of Fonte's
letter, which seems to have come into his possession accidentally at St.
Petersburg, during the absence of the Russian expedition: it was not,
however, till his return to France in 1747, that he examined it in company
with Ph. Buache. They were agreeably surprised to find that it accorded
with Buache's own conjectures, that it harmonised in many respects with
the discoveries of the Russians. In consequence, Buache laid down in his
new map a water communication between the Pacific Ocean and Hudson's Bay.
Voltaire, relying on the authority of De l'Isle, maintained in his History
of Russia, published in 1759, that the famous passage so long sought for
had been at last discovered. The Academy, however, received Fonte's
narrative with discreet reserve; and observed, that it required more
certain proofs to substantiate it.

The author of the Introduction to the Voyage of the Sutil and Mexicana
states, that the Spanish government, on the representation of the French
geographers, instituted a careful search into the archives of the Indies
in New Spain, as well as into the archives of Peru, and likewise into the
archives at Seville, Madrid, Cadiz, and other places, but that not the
slightest allusion to De Fonte could be anywhere traced. This result was
made known by Robert de Vaugondy, in his reply to Buache, intitled
"Observations Critiques sur les nouvelles Découvertes de l'Amiral Fuentes,
8vo. 1753;" and the author of the Noticia di California, published in
Madrid, in 1757, confirmed Vaugondy's announcement.

It is unnecessary to observe, that the experience of subsequent navigators
has failed to confirm the narrative of De Fonte. There is one passage in
the narrative which seems almost of itself to be sufficient to condemn the
story. The admiral is made to state, "that he despatched one of his
vessels to discover whether California was an island or not; for before it
was not known whether California was an island or a peninsula." Now the
Californian Gulf had been completely explored by Francisco de Ulloa, in
1539, who ascertained the fact of the junction of the peninsula to the
main land, near the 32d degree of latitude; and again by Fernando de
Alarcon, in 1540, who ascended a great river at the head of the Gulf of
California, supposed to be the Colorado. A series of excellent charts were
drawn up by Domingo del Castillo, Alarcon's pilot, a fac-simile of which
Mr. Greenhow (p. 61) states may be found in the edition of the letters of
Cortez, published at Mexico in 1770, by Archbishop Lorenzana. The shores
of the gulf, and of the west side of California, to the 30th degree of
latitude, were there delineated with a surprising approach of accuracy. It
is not a reasonable supposition that the Admiral of New Spain and Peru,
who must have had ready access to the archives of the Indies at Mexico,
should have expressed himself in a manner which argued a total ignorance
of the previous discoveries of his countrymen; but it was very probable
that a contributor to the Monthly Miscellany should stumble upon this
ground, from a notion having been revived in Europe, about the middle of
the 17th century, that California was an island.

Humboldt, in his Essai Politique sur la Nouvelle Espagne, l. iii., c.
viii., states, that when the Jesuits Kühn, Salvatierra, and Ugarte,
explored, in detail, during the years 1701-21, the coasts of the Gulf of
California, it was thought in Europe to have been for the first time
discovered that California was a peninsula. But, in his Introduction
Géographique, he observes, that in the sixteenth century no person in
Mexico denied this fact; nor was it till the seventeenth century that the
idea originated that California was an island. During the seventeenth
century, the Dutch freebooters were amongst the most active and inveterate
enemies of Spain in the New World; and having established themselves in
the bay of Pichilingue, on the east coast of California, from which
circumstance they received the name of "Pichilingues," they caused great
embarrassment to the Spanish viceroys from their proximity to the coasts
of Mexico. To these adventurers the origin of the notion, that California
was separated from the main land, has been referred by some authors; but
Mr. Greenhow (p. 94) states, that it was to be traced to the captain of a
Manilla ship, in 1620, who reported that the asserted river of D'Aguilar
was the western mouth of a channel which separated the northern extremity
of California from the main land. A survey of the lower part of the
peninsula was executed by the Governor of Cinaloa, and the Jesuit Jacinto
Cortes, in pursuance of the orders of the Duke of Escalona, who was
Viceroy during 1610-42, about the very time when Fonte purported to have
sailed. They did not, however, go to the head of the gulf; and Humboldt
informs us, that, during the feeble reign of Charles II. of Spain,
1655-1700, several writers had begun to regard California as a cluster of
large islands, under the name of "Islas Carolinas." Thus we find in the
maps of this period, in those for example of Sanson, Paris, 1650; of Du
Val, geographer to the King of France, Abbeville, 1655; of Jenner, London,
1666; of De Wit, Amsterdam; of Vischer, Schenkius, Herman, Moll, and
others, which are in the King's Library at the British Museum, California
is depicted as an island; and in Jenner's Map, in which C. Blanco is the
northernmost headland of California, there is this note:--"This California
was in times past thought to have been a part of the continent, and so
made in all maps; but, by further discoveries, was found to be an island,
long 1700 leagues."

On the other hand, the maps of the later part of the sixteenth, and the
earlier part of the seventeenth centuries, such as those by Ortelius, the
King of Spain's geographer, published in his Theatrum Orbis Terrarum,
first edited in 1570, the two maps adopted by Hakluyt in the respective
editions of his voyages, in 1589 and 1600, that of Le Clerc, 1602, of
Hondius, which Purchas adopted in his Pilgrims, in 1625, of Speed, 1646,
and that of Blaew in his Novus Atlas of 1648, agree in representing
California as a peninsula. The single passage, therefore, in De Fonte's
account, in which he, being "then admiral of New Spain and Peru, and now
prince (or rather president) of Chili, explicitly states that he
despatched one of his vessels, under the command of Don Diego Pennelosa,
the nephew of Don Luis de Haro," then great minister of Spain, "to
discover whether California was an island or not, for before it was not
known whether it was an island or a peninsula," seems to point at once to
the European origin of the tale. Mr. Dalrymple, the well-known secretary
of the British Admiralty at the time of the Nootka Sound controversy, who
was distinguished as the author of many able works on maritime
discoveries, considered the story to have been a jeu-d'esprit of Mr. James
Petiver the naturalist, one of the contributors to the Monthly Miscellany,
whose taste for such subjects was evinced by his collection of MS.
extracts, since preserved in the British Museum, and whose talent for such
kind of composition was shown by his Account of a Voyage to the Levant,
published in the same Miscellany. It is worthy of remark, that the tale
of De Fuca and the letter of De Fonte, as they have derived their origin,
so they have derived their support, from writers foreign to the nation in
whose favour they set up the asserted discoveries, and from them alone.
Maldonado, it is true, was a Spaniard, but he likewise has found defenders
only amongst strangers, whilst in his own country his narrative has been
condemned as an imposture by posterity equally as by his cotemporaries.




CHAPTER V.

THE CONVENTION OF THE ESCURIAL.

    The King George's Sound Company, in 1785.--Dixon and Portlock.--The
    Nootka and Sea Otter.--The Captain Cook and Experiment.--Expedition of
    Captain Hanna under the Portuguese Flag.--The Felice and
    Iphigenia.--The Princesa and San Carlos, in 1788.--Martinez and Haro
    directed to occupy Nootka in 1789.--The Princess Royal arrives at
    Nootka.--Colnett arrives in the Argonaut, July 2, 1789, with
    instructions to found a Factory.--He is seized, with his Vessel, by
    Martinez.--The Princess Royal also seized.--Both vessels sent as
    Prizes to San Blas.--The Columbia and Washington allowed to
    depart.--Representation of the Spanish Government to the Court of
    London.--British Reply.--Memorial of Captain Meares.--Message of the
    British Crown to Parliament.--British Note of May 5, 1790, to the
    Spanish Minister in London.--British Memorial of May 16.--Memorial of
    the Court of Spain, July 13.--Declaration of his Catholic Majesty to
    all the Courts of Europe.--Treaty of Utrecht.--Declaration and Counter
    declaration of July 4.--Spain demands aid from France, according to
    the Family Compact of 1761.--The National Assembly promotes a peaceful
    Adjustment of the Dispute.--Convention between Spain and Great Britain
    signed at the Escurial, Oct. 28, 1790.--Recognition of the Claims of
    Great Britain.


It has been already observed, that no British subject could trade to the
west of Cape Horn without a licence from the South Sea Company, whilst, on
the other hand, to the eastward of the Cape of Good Hope the East India
Company possessed an exclusive monopoly of commerce. Thus the mercantile
association which assumed the name of the King George's Sound Company, and
which despatched two vessels under Dixon and Portlock from England in the
autumn of 1785, had found it necessary to obtain licences from the South
Sea Company for them to proceed by way of Cape Horn, and they had likewise
entered into an arrangement with the East India Company to carry their
furs to Canton, and there exchange them for teas and other products of
China, to be conveyed in their turn round the Cape of Good Hope to
England. These vessels sailed under the British flag. With a similar
object, two vessels, the Nootka, under Captain Meares, and the Sea Otter,
under Captain Tipping, were, by an association under the patronage of the
Governor General of India, early in 1786, despatched from Calcutta, under
the flag of the English East India Company, whilst the Captain Cook and
the Experiment sailed from Bombay for the same destination. An attempt,
however, had been made by the British merchants in the preceding year, to
organise a trade between North-west America and China, under the
protection of the Portuguese flag, so as to evade the excessive harbour
dues demanded by the Chinese authorities from other European nations, by
means of licences granted by the Portuguese authorities at Macao. The
first expedition of this kind was made by Captain Hanna, in 1785, and was
most successful as a commercial speculation. In a similar manner, in 1788,
some British merchants residing in India fitted out the Felice and
Iphigenia for this trade, and through the interest of Juan Cavallo, a
Portuguese merchant who had resided for many years at Bombay as a
naturalised British subject, and traded from that place under the
protection of the East India Company, obtained from the Governor of Macao
permission for them to navigate under the Portuguese flag, if found
convenient. Meares in his memorial states, that Cavallo merely lent his
name to the firm, and that he had no real interest in the Iphigenia, as on
his subsequent bankruptcy the claims of his creditors were successfully
resisted, and the Iphigenia consequently lost the privileges which she had
hitherto enjoyed in the ports of China, in her character of a Portuguese
ship. On the other hand, in the obligation which Martinez exacted from the
master and supercargo of the Iphigenia, Cavallo is spoken of as the lawful
owner of the vessel in whose name they bound themselves. It is possible
however that they may have bound the ostensible owner on purpose to defeat
the object of the Spanish commander, instead of the real owners; and
assuredly the instructions of the Merchant Proprietors to Captain Meares,
"commanding the Felice and Iphigenia," seem to be at variance with the
fact of Cavallo being the real owner, as they are addressed to him
evidently not in the mere character of supercargo, but as having the
complete control of the vessels, which are expressly stated to have been
fitted out and equipped by the Merchant Proprietors: and Meares is
directed to defend his vessel against all attempts of Russian, English, or
Spanish vessels to seize it; to protest, if captured, against the seizure
of his vessel and cargo; and to take possession of any vessel that
attacked him, as also her cargo, in case he should have the superiority
in the conflict. (Appendix to Meares' Voyage.)

To the same effect, the orders of Captain Meares to Captain Douglas, of
the Iphigenia, seem to be conclusive that the latter had full control over
the vessel. "Should you," it is observed, "in the course of your voyage,
meet with the vessels of any other nation, you will have as little
communication with them as possible. If they be of superior force, and
desire to see your papers, you will show them. You will, however, be on
your guard against surprise. Should they be either Russian, English,
Spanish, or any other civilised nation, and are authorised to examine your
papers, you will permit them, and treat them with civility and friendship.
But at the same time you must be on your guard. Should they attempt to
seize you, or even carry you out of your way, you will prevent it by every
means in your power, and repel force by force."

Captain Douglas, moreover, was directed to note down the good behaviour of
his officers and crew, and thus afford his employers a medium to
distinguish merit from worthlessness. "This log-book," they go on to
state, "is to be signed by yourself. On your return to China you will seal
up your log-book, charts, plans, &c., &c., and forward them to Daniel
Beale, Esq., of Canton, who is the ostensible agent for the concern; and
you have the most particular injunctions not to communicate or give copies
of any charts or plans that you may make, as your employers assert a right
to all of them, and as such will claim them."

The person to whom such instructions were addressed must evidently have
had the control of the vessel, and not been merely in charge of the cargo.
It has been, however, rightly observed by Mr. Greenhow, that the papers on
board the Iphigenia, when seized by Martinez, were written in the
Portuguese language, which Captain Douglas did not understand, and
therefore could not well act upon. The reply to this seems to be, that
Douglas himself acted upon the letter of Captain Meares, inserted in the
Appendix to Meares' Voyages, which embodied in English the substance of
the general instructions drawn up for the expedition in Portuguese; and
that the ship's papers were in the Portuguese language to support her
assumed Portuguese character. There is no doubt that there was some
deception in the transaction, but the deception seems to have been
directed rather against the Chinese than the Spaniards.

Whatever may have been the character which was sought to be given to the
Felice and Iphigenia, Meares appears on landing at Nootka to have avowed
his British character, by hoisting British colours upon the house which he
built on ground granted to him by Maquilla, the chief of the neighbouring
district, as well as by displaying the English ensign on the vessel which
he constructed and launched at Nootka. It was his intention to employ this
vessel, a sloop of about forty tons, exclusively on the coast of America,
in exploring new trading stations, and in collecting furs to be conveyed
by the other vessels to the Chinese markets. It was named the North-west
America, and was manned by a crew of seven British subjects and three
natives of China.

Meares, having left the Iphigenia and North-west America to carry on the
trade on the American coast, returned with a cargo of furs to Macao, in
December 1788, and having there sold the Felice, associated himself with
some merchants of London, who had embarked in this commerce under licences
from the East India and South Sea Companies. Two of their vessels, under
Dixon and Portlock, which have already been alluded to, the Prince of
Wales and Princess Royal, had just arrived at Canton from the north-west
coast of America. Meares, apprehending that mutual loss would result from
competition, entered into a formal agreement with Mr. John Etches, the
supercargo of the two ships, making a joint stock of all the vessels and
property employed in that trade. The new firm immediately purchased an
additional ship, named the Argonaut, and the Prince of Wales being
chartered with a cargo of tea to England by the East India Company, the
Princess Royal and the Argonaut were ordered to sail to Nootka Sound under
the command of Captain Colnett and Captain Hudson. It is indisputable that
these vessels were sailing under the British flag, and from the
instructions delivered to Captain Colnett, the Iphigenia and North-west
America were henceforward to be under his orders, and to trade on account
of the Company. He was accordingly directed to send home Captain Douglas
in the Argonaut, and to receive from him the Iphigenia and North-west
America, shifting their crews, &c.

"We also authorise you," the instructions go on to state, "to dismiss from
your service all persons who shall refuse to obey your orders, when they
are for our benefit, and in this case we give you to understand, the
Princess Royal, America, and other small craft, are always to continue on
the coast of America. Their officers and people, when the time of their
service is up, must be embarked in the returning ship to China, and on no
account whatever will we suffer a deviation from these orders."

Thenceforward, it appears, that the Iphigenia and North-west America would
be considered as sailing under the same character as the other vessels of
this Company.

The steady advance of the Russian establishments along the north-west
shores of the Pacific, which had become notorious from the publication of
Captain Cook's journals, could not but cause great anxiety to the Spanish
government. An expedition of inquiry was in consequence sent northward
from the port of San Blas in 1788, consisting of two vessels, the Princesa
and San Carlos, under the command of Esteban José Martinez and Gonzalo
Lopez de Haro. They were instructed to proceed directly to Prince
William's Sound, and to visit the various factories of the Russians in
that neighbourhood. Having executed their commission, they returned to San
Blas in the autumn of the same year, and reported the results of their
voyage to the Viceroy of Mexico. Martinez brought back the information
that it was the intention of the Russians to found a settlement at Nootka.
The Court of Madrid in consequence addressed a remonstrance to the Emperor
of Russia against the encroachments upon the territories of his Catholic
Majesty, which were assumed to extend northward up to Prince William's
Sound, and the Viceroy of Mexico in the mean time took measures to prevent
the execution of any such schemes. With this object he despatched Martinez
and Haro in 1789, with instructions to occupy the port of Nootka by right
of the prior discovery of Perez in 1774, to treat any Russian or English
vessels that might be there with the courtesy which the amicable relations
between the several nations required, but to manifest to them the
paramount rights of Spain to make establishments there, and by inference
to prevent all foreign establishments which might be prejudicial to
Spanish interests.

The Princesa sailed into Nootka Sound on the 6th of May 1789, and found
the Iphigenia at Friendly Cove. The San Carlos joined her consort on the
13th. The Columbia merchantman, of the United States of America, was lying
at anchor at no great distance. Mutual civilities passed between the
different vessels till the 15th, when Martinez took possession of the
Iphigenia, and transferred her captain and crew as prisoners to his own
vessels. He subsequently allowed the Iphigenia to depart, upon an
obligation being signed by the captain and supercargo on behalf of Juan
Cavallo of Macao, as the owner, to satisfy all demands, in case the
Viceroy of Spain should pronounce her to be a prize, on account of
navigating or anchoring in seas or ports belonging to the dominion of his
Catholic Majesty without his permission. Captain Kendrick of the Columbia,
and Ingraham his first pilot, were called in to witness this agreement.
The Iphigenia was released on the 1st of June, and sailed away directly to
Queen Charlotte's Island. On the 8th, the North-west America arrived from
a trading voyage along the southern coasts, and was immediately taken
possession of by Martinez. A few days afterwards the Princess Royal
arrived from Macao, bringing intelligence of the failure of the house of
Cavallo, in consequence of which Martinez hoisted Spanish colours on board
of the North-west America, and employed her to trade along the coast upon
his own account.

The Princess Royal was not however molested by him, but, on the 2d of
July, her consort the Argonaut arrived with Captain Colnett, who, upon
hearing of the treatment of the Iphigenia and the North-west America,
hesitated at first to enter the Sound. His instructions were to found a
factory, to be called Fort Pitt, in the most convenient station which he
might select, for the purpose of a permanent settlement, and as a centre
of trade, round which other stations might be established. Having at last
entered the Sound, he was invited to go on board the Princesa, where an
altercation ensued between Martinez and himself, in respect of his object
in visiting Nootka, the result of which was the arrest of Colnett himself
and the seizure of the Argonaut. Her consort the Princess Royal on her
return to Nootka on the 13th of July, was seized in like manner by the
Spanish commander. Both these vessels were sent as prizes to San Blas,
according to Captain Meares' memorial. The Columbia in the mean while had
been allowed to depart unmolested, and her consort the Washington, which
had been trading along the coast, soon followed her.

Such is a brief summary of the transactions at Nootka Sound in the course
of 1789, which led to the important political discussions, that
terminated in the convention of the 28th of Oct. 1790, signed at the
Escurial. By this convention the future relations of Spain and Great
Britain in respect of trade and settlements on the north-west coast of
America, were amicably arranged.

Immediately upon receiving information of these transactions from the
Viceroy, the Spanish Government hastened to communicate to the Court of
London the seizure of a British vessel, (the Argonaut,) and to remonstrate
against the attempts of British subjects to make settlements in
territories long occupied and frequented by the Spaniards, and against
their encroachments on the exclusive rights of Spain to the fisheries in
the South Seas, as guaranteed by Great Britain at the treaty of Utrecht.
The British Ministry in reply demanded the immediate restoration of the
vessel seized, as preliminary to any discussion as to the claims of Spain.
The Spanish Cabinet in answer to this demand stated, that as the Viceroy
of Mexico had released the vessel, his Catholic Majesty considered that
affair as concluded, without discussing the undoubted rights of Spain to
the exclusive sovereignty, navigation, and commerce in the territories,
coasts, and seas, in that part of the world, and that he should be
satisfied with Great Britain directing her subjects to respect those
rights in future. At this juncture, Meares, who had received from the
Columbia, on her arrival at Macao, the tidings of the seizure of the
North-west America, whose crew returned as passengers in the Columbia, as
well as of the Argonaut and the Princess Royal, arrived at London with the
necessary documents to lay before the British Government. A full memorial
of the transactions at Nootka Sound in 1789, including an account of the
earlier commercial voyages of the Nootka and the Felice, was presented to
the House of Commons on May 13, 1790. It is published in full in the
appendix to Meares' Voyages, and the substance of it may be found amongst
the state papers in the Annual Register for 1790. This was followed by a
message from his Majesty to both Houses of Parliament on May 25th, stating
that "two vessels belonging to his Majesty's subjects, and navigated under
the British flag, and two others, of which the description had not been
hitherto sufficiently ascertained, had been captured at Nootka Sound by an
officer commanding two Spanish ships of war." Having alluded to the
substance of the communications which had passed between the two
Governments, and to the British minister having been directed to make a
fresh representation, and to claim full and adequate satisfaction, the
message concluded with recommending that "such measures should be adopted
as would enable his Majesty to support the honour of his crown and the
interests of his people." The House of Commons gave their full assent to
these recommendations, and readily voted the necessary supplies, so that
preparations to maintain the rights of Great Britain by arms were
immediately commenced. In the mean time a note had been addressed on May
5th, to the Spanish minister in London, to the effect that his Majesty the
King of England would take effectual measures to prevent his subjects from
acting against the just and acknowledged rights of Spain, but that he
could not accede to her pretensions of absolute sovereignty, commerce, and
navigation, and that he should consider it his duty to protect his
subjects in the enjoyments of the right of fishery in the Pacific Ocean.
In accordance with the foregoing answers, the British chargé-d'affaires at
Madrid made a demand, on May 16th, for the restitution of the Princess
Royal, and for reparation proportionate to the losses and injuries
sustained by English subjects trading under the British flag. He further
asserted for them "an indisputable right to the enjoyment of a free and
uninterrupted navigation, commerce, and fishery, and to the possession of
such establishments as they should form with the consent of the natives of
the country, not previously occupied by any of the European nations." The
substance of these communications was embodied in the memorial of the
Court of Spain, delivered on June 13th to the British ambassador at
Madrid. It appeared, however, from a subsequent reply from the Spanish
minister, the Conde de Florida Blanca, that Spain maintained, "that the
detention of the vessels was made in a port, upon a coast, or in a bay of
Spanish America, the commerce or navigation of which belonged exclusively
to Spain by treaties with all nations, even England herself." The nature
of these exclusive claims of Spain had been already notified to all the
courts of Europe, in a declaration made by his Catholic Majesty on June
4th, where the words are made use of, "in the name of the King, his
sovereignty, navigation, and exclusive commerce to the continent and
islands of the South Sea, it is the manner in which Spain, in speaking of
the Indies, has always used these words: that is to say, to the Continent,
islands and seas, which belong to his Majesty, so far as discoveries have
been made, and secured to him by treaties and immemorial possession, and
uniformly acquiesced in, notwithstanding some infringements by
individuals, who have been punished upon knowledge of their offences. And
the King sets up no pretensions to any possessions, the right to which he
cannot prove by irrefragable titles."

What were the treaties and immemorial possession upon which Spain rested
her claims, was more explicitly stated in the Spanish Memorial of the 13th
June. The chief reliance seemed to have been placed upon the 8th article
of the Treaty of Utrecht, as concluded between Great Britain and Spain in
1713, by which it was agreed, that the exercise of navigation and commerce
to the Spanish West Indies should remain in the same state in which it was
in the time of Charles II. of Spain; that no permission should at any time
be given to any nation, under any pretext whatever, to trade into the
dominions subject to the Crown of Spain in America, excepting as already
specially provided for by treaties: moreover, Great Britain undertook "to
aid and assist the Spaniards in re-establishing the ancient limits of
their dominions in the West Indies, in the exact situation in which they
had been in the time of Charles II." The extent of the Spanish
territories, commerce, and dominions on the continent of America was
further alleged in this memorial to have been clearly laid down and
authenticated by a variety of documents and formal acts of possession
about the year 1692, in the reign of the above-mentioned monarch: all
attempted usurpations since that period had been successfully resisted,
and reiterated acts of taking possession by Spanish vessels, had preserved
the rights of Spain to her dominions, which she had extended to the limits
of the Russian establishments within Prince William's Sound. It was still
further alleged, that the Viceroys of Peru and New Spain had of late
directed the western coasts of America, and the islands and seas adjacent,
to be more frequently explored, in order to check the growing increase of
smuggling, and that it was in one of the usual tours of inspection of the
coasts of California that the commanding officer of a Spanish ship had
detained the English vessels in Nootka Sound, as having arrived there, not
for the purposes of trade, but with the object of "founding a settlement
and fortifying it."

From these negotiations it would appear, that Spain claimed for herself an
exclusive title to the entire north-western coast of America, up to
Prince William's Sound, as having been discovered by her, and such
discovery having been secured to her by treaties, and repeated acts of
taking possession. She consequently denied the right of any other nation
(for almost all the nations of Europe had been parties to the Treaty of
Utrecht) to make establishments within the limits of Spanish America.
Great Britain, on the other hand, maintained her right "to a free and
undisturbed navigation, commerce, and fishery, and to the possession of
any establishment which she might form with the consent of the natives of
the country, where such country was not previously occupied by any of the
European nations." These may be considered to have been the two questions
at issue between Great Britain and Spain, which were set at rest by the
subsequent convention.

That such was the object of the convention, is evident from the tenor of
two documents exchanged between the two courts on the 24th of July, 1790,
the first of which contained a declaration, on the part of his Catholic
Majesty, of his engagement to make full restitution of all the British
vessels which were captured at Nootka, and to indemnify the parties with
an understanding that it should not prejudice "the ulterior discussion of
any right which his Majesty might claim to form an exclusive establishment
at the port of Nootka;" whilst on the part of his Britannic Majesty a
counter-declaration was issued, accepting the declaration of his Catholic
Majesty, together with the performance of the engagements contained
therein, as a full and entire satisfaction for the injury of which his
Majesty complained; with the reservation that neither the declaration nor
its acceptance "shall prejudice in any respect the right which his Majesty
might claim to any establishment which his subjects might have formed, or
should be desirous of forming in future, in the said Bay of Nootka." Mr.
Greenhow's mode of stating the substance of these papers (p. 206) is
calculated to give an erroneous notion of the state in which they left the
question. He adds, "it being, however, at the same time _admitted and
expressed on both sides_, that the Spanish declaration was not to preclude
or prejudice the ulterior discussion of any right which his Catholic
Majesty might claim to form an exclusive establishment at Nootka Sound."
This is not a correct statement of the transaction, as the reservation was
expressed in the declaration of his Catholic Majesty; but so far was his
Britannic Majesty from admitting it in the counter-declaration, that he
met it directly with a special reservation of the rights of his own
subjects, as already set forth.

Had the crown of Spain been able to rely upon assistance from France, in
accordance with the treaty of 1761, known as the Family Compact, there can
be no doubt that she would have attempted to maintain by arms her claim of
exclusive sovereignty over "all the coast to the north of Western America
on the side of the South Sea, as far as beyond what is called Prince
William's Sound, which is in the sixty-first degree;" but her formal
application for assistance was not attended with the result which the
mutual engagements of the two crowns would have secured at an earlier
period. The National Assembly, to which body Louis XVI. was obliged, under
the altered state of political circumstances in France, to submit the
letter of the King of Spain, was rather disposed to avail itself of the
opportunity which seemed to present itself for substituting a national
treaty between the two nations for the Family Compact between the two
Courts; and though it decreed that the naval armaments of France should be
increased in accordance with the increased armaments of other European
powers, it made no direct promise of assistance to Spain. On the contrary,
the Diplomatic Committee of the National Assembly resolved rather to
strengthen the relations of France with England, and to prevent a war, if
possible; and with this object they co-operated with the agent of Mr. Pitt
in Paris (Tomline's Life of Pitt, c. xii.) and with M. de Montmorenci, the
French Secretary for Foreign Affairs, in furthering the peaceable
adjustment of the questions in dispute.


_Convention between His Britannic Majesty and the King of Spain, signed at
the Escurial the 28th of October, 1790._ (Annual Register, 1790, p. 303.
Martens, Recueil de Traités, t. iv., p. 493.)

"Their Britannic and Catholic Majesties, being desirous of terminating, by
a speedy and solid agreement, the differences which have lately arisen
between the two crowns, have judged that the best way of attaining this
salutary object would be that of an amicable arrangement, 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. In this view, they have named and
constituted for their plenipotentiaries; to wit, on the part of his
Britannic Majesty, Alleyne Fitz-Herbert, Esq., one of his said Majesty's
Privy Council in Great Britain and Ireland, and his Ambassador
Extraordinary and Plenipotentiary to his Catholic Majesty; and, on the
part of his Catholic Majesty, Don Joseph Monino, Count of Florida Blanca,
Knight Grand Cross of the Royal Spanish Order of Charles III., Councillor
of State to his said Majesty, and his Principal Secretary of State, and of
the Despatches; who, after having communicated to each other their
respective full powers, have agreed upon the following articles:--

"ART. I. It is agreed that the buildings and _tracts of land_ situated on
the north-west coast of the continent of North America, or on islands
adjacent to that continent, 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 Britannic subjects.

"ART. II. And further, that a just reparation shall be made, according to
the nature of the case, for all acts of violence or hostility which may
have been committed, subsequent to the month of April, 1789, by the
subjects of either of the contracting parties against the subjects of the
other; and that, in case any of the said respective subjects shall, since
the same period, have been forcibly dispossessed of their _lands_,
buildings, vessels, merchandise, or other property whatever, on the said
continent, or on the seas or islands adjacent, they shall be
_re-established in the possession thereof_, or a just compensation shall
be made to them for the losses which they shall have sustained.

"ART. III. And in order to strengthen the bonds of friendship, and to
preserve in future a perfect harmony and good understanding between the
two contracting parties, it is agreed 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_; the whole subject, nevertheless, to the restrictions
and provisions specified in the three following articles.

"ART. IV. His Britannic Majesty engages to take the most effectual
measures to prevent the navigation and fishery of his subjects in the
Pacific Ocean, or in the South Seas, from being made a pretext for illicit
trade with the Spanish _settlements_; and with this view, it is moreover
expressly stipulated, that British subjects shall not navigate, or carry
on their fishery in the said seas, within the space of ten sea leagues
from any part of the coasts _already occupied by Spain_.

"ART. V. It is agreed, that as well in the places which are to be restored
to the British subjects, by virtue of the first article, as in all other
parts of the north-western coasts of North America, or of the islands
adjacent, situated to the north of the parts of the said coast already
occupied by Spain, wherever the subjects of either of the two powers
_shall have made settlements_ since the month of April, 1789, or _shall
hereafter make any_, the subjects of the other shall have free access, and
shall carry on their trade, without any disturbance or molestation.

"ART. VI. It is further agreed, with respect to the eastern and western
coasts of South America, and to the islands adjacent, that no _settlement_
shall be formed hereafter, by the respective subjects, in such parts of
those coasts as are situated to the south of those parts of the same
coasts and of the islands adjacent, which are already occupied by Spain:
provided that the said respective subjects shall retain the liberty of
landing on the coasts and islands so situated, for the purposes of their
fishery, and of erecting thereon huts, and other temporary buildings,
serving only for those purposes.

"ART. VII. In all cases of complaint or infraction of the articles of the
present convention, the officers of either party, without permitting
themselves previously to commit any violence or act of force, shall be
bound to make an exact report of the affair, and of its circumstances, to
their respective courts, who will terminate such differences in an
amicable manner.

"ART. VIII. The present convention shall be ratified and confirmed in the
space of six weeks, to be computed from the day of its signature, or
sooner, if it can be done.

"In witness whereof, we the undersigned Plenipotentiaries of their
Britannic and Catholic Majesties, have, in their names, and in virtue of
our respective full powers, signed the present convention, and set thereto
the seals of our arms.

"Done at the Palace of St. Laurence, the twenty-eighth of October, one
thousand seven hundred and ninety.

  "ALLEYNE FITZ-HERBERT.
      (L. S.)

  "El Conde DE FLORIDA BLANCA."
      (L. S.)

On examining this convention, it will be seen that the first article
confirmed the positive engagement which his Catholic Majesty had
contracted by his declaration of the 24th July: that the second contained
an engagement for both parties to make reparation mutually for any
contingent acts of violence or hostility: that the third defined for the
future the mutual rights of the two contracting parties, in respect to the
questions which remained in dispute after the exchange of the declaration
and counter-declaration. By this article the navigation and fisheries of
the Pacific Ocean and the South Seas were declared to be free to the
subjects of the two crowns, and their mutual right of trading with the
natives on the coast, and of _making settlements in places not already
occupied_, was fully recognised, subject to certain restrictions in the
following articles.

By the fourth of these, his Britannic Majesty bound himself to prevent his
subjects carrying on an illicit trade with the Spanish settlements, and
engaged that they should not approach within ten miles of the coasts
already occupied by Spain.

By the fifth it was agreed that, in the places to be restored to the
British, and in whatever parts of the north-western coasts of America, or
the adjacent islands, situate to the north of the parts already occupied
by Spain, the subjects of either power should make settlements, the
subjects of the other should have free commercial access.

By the sixth it was agreed, that no settlements should be made by either
power on the eastern and western coasts of South America, or the adjacent
islands, south of the parts already occupied by Spain; but that they
should be open to the temporary occupation of the subjects of either
power, for the purposes of their fishery.

By the seventh, provisions were made for the amicable arrangement of any
differences which might arise from infringements of the convention; and,
by the eighth, the time of ratification was settled.

It thus appears that, by the third article, the right insisted upon by the
British chargé-d'affaires at Madrid, in the Memorial of the 16th of May,
was fully acknowledged; namely, "the indisputable right to the enjoyment
of a free and uninterrupted navigation, commerce, and fishery, and to the
possession of such establishments as they should form, with the consent of
the natives of the country, not previously occupied by any of the European
nations." In accordance with this view, it is observed in Schoell's
Histoire Abrégée des Traités de Paix: "En conséquence il fut signé le 28
Octobre, au palais de l'Escurial, une convention par laquelle la question
litigieuse fut entièrement décidée en faveur de la Grande Bretagne."

Thus, indeed, after a struggle of more than two hundred years, the
principles which Great Britain had asserted in the reign of Elizabeth,
were at last recognised by Spain: the unlimited pretensions of the Spanish
crown to exclusive dominion in the Western Indies, founded upon the bull
of Alexander VI., were restrained within definite limits; and occupation,
or actual possession, was acknowledged to be henceforward the only test
between the two crowns, in respect to each other, of territorial title on
the west coast of North America.

Mr. Greenhow states, (p. 215,) that both parties were, by the convention,
equally excluded from settling in the vacant coasts of South America; and
from exercising that jurisdiction which is essential to political
sovereignty, over any spot north of the most northern Spanish settlement
in the Pacific. The former part of this statement is perfectly correct,
but the latter is questionable, in the form in which it is set forth. The
right of trading with the natives, or of making settlements in places not
already occupied, was secured to both parties by the third article:
whereas, in places where the subjects of either power should have made
settlements, free access for carrying on their trade was all that was
guaranteed to the subjects of the other party. This then was merely a
commercial privilege, not inconsistent with that territorial sovereignty,
which, by the practice of nations, would attend upon the occupation or
actual possession of lands hitherto vacant. In fact, when Mr. Greenhow
observes, in continuation, that "the convention determined nothing
regarding the rights of either to the sovereignty of any portion of
America, except so far as it may imply an abrogation, or rather suspension
of all such claims on both sides, to any of those coasts;" he negatives
his previous supposition that the convention precluded the acquisition of
territorial sovereignty by either party. The general law of nations would
regulate this question, if the convention determined nothing: and, by that
general law, "when a nation takes possession of a country to which no
prior owner can lay claim, it is considered as acquiring the empire or
_sovereignty_ of it at the same time with the _domain_." The discussion of
this question, however, as being one of law, not of fact, will be more
properly deferred.

One object of Vancouver's mission, as already observed, was to receive
from the Spanish officers such lands or buildings as were to be restored
to the subjects of his Britannic Majesty, in conformity to the first
article of the convention, and instructions were forwarded to him, after
his departure, through Lieutenant Hergest, in the Dædalus, to that effect.
The letter of Count Florida Blanca to the commandant at Nootka, which
Lieutenant Hergest carried out with him, is to be found in the
Introduction to Vancouver's Voyage, p. xxvii. "In conformity to the first
article of the convention of 28th October, 1790, between our Court and
that of London, ( . . . . . ) you will give directions that his Britannic
Majesty's officer, who shall deliver this letter, shall immediately be put
into possession of the buildings, and districts or parcels of land, which
were occupied by the subjects of that sovereign in April 1789, as well in
the port of Nootka or of St. Lawrence, as in the other, said to be called
Port Cox, and to be situated about sixteen leagues distant from the
former, to the southward; and that such parcels or districts of land of
which the English subjects were dispossessed, be restored to the said
officer, in case the Spaniards should not have given them up."

Vancouver, however, on his arrival, found himself unable to acquiesce in
the terms proposed by Señor Quadra, the Spanish commandant, and despatched
Lieutenant Mudge, by way of China, to England, for more explicit
instructions. Lieutenant Broughton was subsequently directed to proceed
home in 1793, with a similar object. On his arrival he was sent by the
British Government to Madrid; and on his return to London, was ordered to
proceed to Nootka, as captain of his Majesty's sloop Providence, with Mr.
Mudge as his first lieutenant, to receive possession of the territories to
be restored to the British, in case they should not have been previously
given up. His own account, published in his Voyage, p. 50, is
unfortunately meagre in the extreme. On 17th March, 1796, he anchored in
the Sound, where Maquinna and another chief brought him several letters,
dated March, 1795, which informed him "that Captain Vancouver sailed from
Monterey the 1st December, 1794, for England, and that the Spaniards had
delivered up the port of Nootka, &c., to Lieutenant Pierce of the marines,
agreeably to the mode of restitution settled between the two Courts. A
letter from the Spanish officer, Brigadier Alava, informed him of their
sailing, in March, 1795, from thence."

It is evidently to this transaction that Schoell, in his edition of Koch's
Histoire Abrégée des Traités de Paix, t. i., ch. xxiv., refers, when he
writes,--"L'exécution de la Convention du 28 Octobre 1790, éprouva, du
reste, des difficultés qui la retardèrent jusqu'en 1795. Elles furent
terminées le 23 Mars de cette année, sur les lieux mêmes, par le brigadier
Espagnol Alava, et le lieutenant Anglais Poara, (Pierce?) qui échangèrent
des déclarations dans le golfe de Nootka même. Après que le fort Espagnol
fut rasé, les Espagnols s'embarquèrent, et le pavillon Anglais y fut
planté en signe de possession." M. Koch does not give his authority, but
it was most probably Spanish, from the modification which the name of the
British lieutenant has undergone. On the other hand, Mr. Greenhow cites a
passage from Belsham's History of England, to this effect:--"It is
nevertheless certain, from the most authentic information, that the
Spanish flag flying at Nootka was never struck, and that the territory has
been virtually relinquished by Great Britain." It ought, however, to have
been stated, that this remark occurs in a note to Belsham's work, without
any clew to the authentic information on which he professed to rely, and
with a special reference to a work of no authority--L'Histoire de
Fréderic-Guillaume II., Roi de Prusse, par le Comte de Ségur;--in which it
is stated, that the determination of the French Convention to maintain at
all risk the Family Compact, intimidated Great Britain into being
satisfied with the mere restitution of the vessels which had been captured
with her subjects, while engaged in a contraband trade with the Spanish
settlements! It further appears from an official Spanish paper, to which
Mr. Greenhow alludes in a note (p. 257,) as existing in the library of
Congress at Washington, intitled "Instruccion reservada del Reyno de Nueva
España, que el Exmo Señor Virey Conde de Revillagigedo diò à su sucesor el
Exmo Señor Marques de Branciforte, en el año de 1704," that orders had
been sent to the commandant at Nootka to abandon the place, agreeably to a
royal _dictamen_. The negative remark, therefore, of Mr. Belsham, cannot
disprove the fact of the restitution of Nootka to the British, against the
positive statements of so many high authorities: it may, indeed, be
conclusive of his own ignorance of the fact, and so far his integrity may
remain unimpeached; but it must be at the expense of his character for
accurate research and careful statement--the most valuable, as well as the
most necessary qualifications of a writer of history.

M. Duflot de Mofras, in his recent work, intitled, "Exploration du
Territoire de l'Orégon," tom. ii., p. 145, further states, that Lieutenant
Pierce passed through Mexico. "Par suite de quelques fausses
interprétations du traité de 28 Oct. 1790, les Espagnols ne remirent point
immédiatement Nootka aux Anglais, et ce ne fut qu'en Mars 1795, que le
commandant Espagnol opéra cette cession entre les mains du Lieutenant
Pierce, de l'infanterie de marine Anglaise, venu tout exprès de Londres
par le Mexique, pour hâter l'exécution du traité de l'Escurial."




CHAPTER VI.

THE OREGON OR COLUMBIA RIVER.

    The Oregon, or Great River of the West, discovered by D. Bruno Heceta,
    in 1775. Ensenada de Heceta.--Rio de San Roque.--Meares' Voyage in the
    Felice, in 1788.--Deception Bay.--Vancouver's Mission in
    1791.--Vancouver vindicated against Mr. Greenhow in respect to Cape
    Orford.--Vancouver passes through Deception Bay.--Meets Captain Gray
    in the Merchant-ship Columbia.--Gray passes the Bar of the Oregon, and
    gives it the Name of the Columbia River.--Extract from the Log-book of
    the Columbia.--Vancouver defended.--The Chatham crosses the Bar, and
    finds the Schooner Jenny, from Bristol, inside.--The Discovery driven
    out to Sea.--Lieutenant Broughton ascends the River with his Boats,
    110 miles from its Mouth.--Point Vancouver.--The Cascades--The
    Dalles.--The Chutes or Falls of the Columbia.--Mr. Greenhow's
    Criticism of Lieutenant Broughton's Nomenclature.--Lord Stowell's
    Definition of the Mouth of a River.--Extent of Gray's Researches.--The
    Discovery of the Columbia River a progressive Discovery.--Doctrine as
    to the Discovery of a River, set up by the United States, denied by
    Great Britain.


It is generally admitted that the first discovery of the locality where
the Oregon or Great River of the West emptied itself into the sea, was
made in 1775, by D. Bruno Heceta, as he was coasting homewards to
Monterey, having parted with his companion Bodega in about the 50th degree
of north latitude. We find in consequence that in the charts published at
Mexico soon after his return, the inlet, which he named Ensenada de la
Asuncion, is called Ensenada de Heceta, and the river which was supposed
to empty itself there, is marked as the Rio de San Roque. The discovery
however of this river by Heceta was certainly the veriest shadow of a
discovery, as will be evident from his own report, which Mr. Greenhow has
annexed in the Appendix to his work. Having stated that on the 17th of
August he discovered a large bay, to which he gave the name of the Bay of
the Assumption, in about 46° 17' N. L., he proceeds to say, that having
placed his ship nearly midway between the two capes which formed the
extremities of the bay, he found the currents and eddies too strong for
his vessel to contend with in safety. "These currents and eddies of water
caused me to believe that the place is the mouth of some great river, or
of some passage into another sea." In fact, Heceta did not ascertain that
the water of this current was not sea-water, and as he himself says, had
little difficulty in conceiving that the inlet might be the same with the
passage mentioned by De Fuca, since he was satisfied no such straits as
those described by De Fuca existed between 47° and 48°.

Although, however, the discovery of this river was so essentially
imperfect, being attended by no exploration, as hardly to warrant the
admission of it into charts which professed to be well authenticated,
still its existence was believed upon the evidence which Heceta's report
furnished, and as subsequent examination has confirmed its existence, the
Spaniards seem warranted in claiming the credit of the discovery for their
countryman.

No further notice of this supposed river occurs until Meares' voyage in
the Felice, in 1788. Meares, according to his published narrative, reached
the bay of the river on July 6th, and steered into it, with every
expectation of finding there, according to the Spanish accounts, a good
port. In this hope, however, he was disappointed, as breakers were
observed, as he approached, extending across the bay. He in consequence
gave to the northern headland the name of Cape Disappointment, and to the
bay itself the title of Deception Bay. "We can now with safety assert," he
writes, "that no such river as that of Saint Roc exists, as laid down in
the Spanish charts." Meares had been led from these charts to expect that
he should find a place of shelter for his ship at the mouth of this river,
and Heceta, in his plan, upon which the Spanish charts were based, had
supposed that there was a port there formed by an island: so that, as "it
blew very strong in the offing, and a great westerly swell tumbled in on
the land," it was not surprising that Meares should have concluded, from
there being no opening in the breakers, that there was no such port, and
therefore no such river.

There can be no doubt that the locality of the bay which Meares
reconnoitred was the locality of the Ensenada de Heceta; and on the other
hand it cannot be gainsayed, that Meares was right in concluding that
there was _no such river_ as that of St. Roque, as laid down in the
Spanish charts, for the context of Meares' narrative explains the meaning
of the word "such." Meares states beforehand, that they were in
expectation that the distant land beyond the promontory would prove to be
"the Cape St. Roque of the Spaniards, near which they _were said to have
found a good port_." The river, then, of St. Roque, such as it was laid
down in Spanish charts, was a river "near which was a good port," and the
disappointment which Meares handed down to posterity by the name which he
gave to the promontory, was that of _not obtaining a place of shelter for
his vessel_. Meares, it must be remembered, was not in search of the
Straits of Anian. He had already in the previous month of June ascertained
the existence of the Straits of Juan de Fuca, which he supposed might be
one of the passages into Hudson's Bay: but he was in search of some
harbour or port, where the ship could remain in safety, while the boats
might be employed in exploring the coast. (Voyage, p. 166.) Such a harbour
indeed Deception Bay most assuredly does not supply, and though Baker's
Bay within the bar of the river affords on the north side a good and
secure anchorage, yet, as Lieut. Broughton subsequently ascertained, "the
heavy and confused swell that rolls in over the shallow entrance, and
breaks in three fathoms water, renders the place between Baker's Bay and
Chinock Point a very indifferent roadstead."

Mr. Greenhow, (p. 177,) in his observations on Meares' voyage, writes
thus: "Yet, strange though it may appear, the commissioners appointed by
the British Government in 1826, to treat with the plenipotentiary of the
United States at London, on the subject of the claims of the respective
parties to territories on the northwest side of America, insisted that
Meares on this occasion discovered the Great River Columbia, which
actually enters the Pacific at Deception Bay, and cite, in proof of their
assertion, the very parts of the narrative above extracted," the substance
of which has just been referred to. Mr. Greenhow, however, has attached
rather too great an extent to the statement of the British commissioners,
which is annexed to the protocol of the sixth conference, held at London,
Dec. 16th, 1826. The documents relative to this negotiation have not as
yet been published by the British Government, but they were made known to
the Congress of the United States, with the message of President Adams, on
Dec. 12, 1827, and Mr. Greenhow has annexed the British statement in his
Appendix.

"Great Britain," it is there said, "can show that in 1788, that is, four
years before Gray entered _the mouth of the Columbia river_, Mr. Meares, a
lieutenant of the Royal Navy, who had been sent by the East India Company
on a trading expedition to the northwest coast of America, had already
minutely explored the coast from the 49th to the 45th degree of north
latitude; had taken formal possession of the Straits of De Fuca in the
name of his sovereign; had purchased land, trafficked and formed treaties
with the natives; and had actually entered _the bay of the Columbia_, to
the north headland of which he gave the name of Cape Disappointment, a
name which it bears to this day."

The language of this statement, it will be seen, is carefully worded, so
as not to go beyond the actual facts narrated in Meares' Voyage; and
further, on referring to the maps of the coasts and harbours which he
visited, it continues, "in which every part of the coast in question,
including _the Bay of the Columbia_ (_into which the log expressly states
that Meares entered_,) is minutely laid down, its delineation tallying in
almost every particular with Vancouver's subsequent survey, and with the
description found in all the best maps of that part of the world adopted
at this moment."

The entry in Meares' log-book is as follows: "July 6, lat. 46° 10'; long.
235° 24'; northerly; strong gales, a great sea. Passed Cape
Disappointment, _into Deception Bay_, and hauled out again, and passed
Quicksand Bay, Cape Grenville, and Cape Look-out."

There is, therefore, nothing strange in the view which the British
Commissioners really insisted upon, though it is strange that Mr. Greenhow
should have misconstrued their statement, particularly as, in a paragraph
almost immediately following, which will be referred to in full in its
proper place, they readily admit that Mr. Gray, four years afterwards,
"was the first to ascertain that this bay formed the outlet of a great
river."

The further examination of these coasts by British subjects was suspended
for a short time, as already seen, by the interference of the Spanish
authorities. After, however, that Spain had definitively abandoned her
pretensions to exclusive rights along the entire northwest coast of
America, as far as Prince William's Sound, and agreed, by the third
article of the Convention of 1790, that occupation should be the test of
territorial title, the British Government judged it expedient "to
ascertain with as much precision as possible the number, extent, and
situation of any settlement which had been made within the limits of 60°
and 30° north latitude by any European nation, and the time when such
settlement was made. With this object, amongst others more immediately
connected with the execution of the first article of the Convention,
Captain George Vancouver was despatched from Deptford with two vessels on
January 6, 1791, and having wintered at the Sandwich Islands, where he was
instructed to wait for further orders in reference to the restoration of
the buildings and tracts of land, of which British subjects had been
dispossessed at Nootka, he arrived off the coast of America on April 17,
1792, in about 39° 30'. He had received special instructions to ascertain
the direction and extent of all such considerable inlets, whether made by
arms of the sea, or by the mouths of great rivers, which might be likely
to lead to, or facilitate in any considerable degree, an intercourse, for
the purposes of commerce, between the northwest coast and the country upon
the opposite side of the continent, which are inhabited or occupied by his
Majesty's subjects;" but he was expressly required and directed "not to
pursue any inlet or river further than it should appear to be navigable by
vessels of such burden as might safely navigate the Pacific Ocean."
(Introduction to Vancouver's Voyage, p. xix.)

Having made a headland, which he supposed to be Cape Mendocino, Vancouver
directed his course northward, examining carefully the line of coast, and
taking soundings as he proceeded. In about latitude 42° 52', longitude
235° 35', he remarked a low projecting headland, apparently composed of
_black_ craggy rocks in the space between the woods and the wash of the
sea, and covered with wood nearly to the edge of the surf, which, as
forming a very conspicuous point, he distinguished by the name of Cape
Orford. Mr. Greenhow has allowed his antipathy to Vancouver to lead him
into an erroneous statement in respect to this headland. Vancouver (Vol.
i., p. 205, April 25, 1792) writes: "Some of us were of opinion that this
was the Cape Blanco of Martin d'Aguilar; its latitude, however, differed
greatly from that in which Cape Blanco is placed by that navigator; and
its _dark_ appearance, which might probably be occasioned by the haziness
of the weather, did not seem to entitle it to the appellation of Cape
Blanco." He afterwards goes on to say, that at noon, when Cape Orford was
visible astern, nearly in the horizon, they had a projecting headland in
sight on the westward, which he considered to be Cape Blanco. He here
ranged along the coast, at the distance of about a league, in hope of
discovering the asserted river of D'Aguilar. "About three in the
afternoon, we passed within a league of the cape above mentioned, and at
about half that distance from some breakers that lie to the westward of
it. This cape, though not so projecting a point as Cape Orford, is
nevertheless a conspicuous one, particularly when seen from the north,
being formed by a round hill, on high perpendicular cliffs, some of which
are _white_, a considerable height from the level of the sea." It appeared
to Vancouver to correspond in several of its features with Captain Cook's
description of Cape Gregory, though its latitude, which he determined to
be 43° 23', did not agree with that assigned by Captain Cook to that
headland; but he again states, that there was a "probability of its being
also the Cape Blanco of D'Aguilar, if land hereabouts the latter ever
saw;" and that "a compact _white_ sandy beach commenced, where the rocky
cliffs composing it terminate."

Mr. Greenhow remarks: "Near the 43d degree of latitude, they sought in
vain for the river, which Martin d'Aguilar was said to have seen, entering
the Pacific thereabouts, in 1603: and they appeared inclined to admit as
identical with the Cape Blanco of that navigator, a _high, whitish_
promontory, in the latitude of 42° 52', to which, however, they did not
scruple to assign the name of Cape Orford." Had these observations been
made in reference to Cape Gregory, the high cliffs of which are described
by Vancouver as _white_, they would have been intelligible; but, directed
as they are by Mr. Greenhow against a headland which Vancouver expressly
describes as a "wedge-like, low, perpendicular cliff; composed of _black
craggy rock_, with breakers upon sunken rocks about four miles distant, in
soundings of forty-five fathoms, _black_ sandy bottom," they expose Mr.
Greenhow himself to the charge of not being sufficiently scrupulous when
assailing a writer, towards whom he confesses that he feels considerable
animosity.

Having reached Cape Lookout, in 45° 32' N. L., Vancouver examined with
attention the portion of coast which Meares had seen. About ten leagues to
the north of this headland, the mountainous inland country descends
suddenly to a moderate height, and were it not covered with lofty timber,
might be deemed low land. Noon, "on the 27th of April, brought them in
sight of a conspicuous point of land, composed of a cluster of hummocks,
moderately high, and projecting into the sea from the low land above
mentioned. The hummocks are barren, and steep near the sea, but their tops
thinly covered with wood. On the south side of this promontory was the
appearance of _an inlet, or small river_, the land behind not indicating
it to be of any great extent; nor did it seem accessible to vessels of our
burden, as the breakers extended from the above point two or three miles
into the ocean, until they joined those on the beach, three or four
leagues further south. On reference to Mr. Meares' description of the
coast south of this promontory, I was at first induced to believe it to be
Cape Shoalwater; but on ascertaining its localities, I presumed it to be
that which he calls Cape Disappointment, and the opening south of it
Deception Bay. This cape was found to be in latitude of 46° 19', longitude
236° 6' east. The sea had now changed from its natural to _river-coloured_
water, the probable consequence of some streams falling into the bay, or
into the opening north of it, through the low land. Not considering this
opening worthy of our attention, I continued our pursuit to the northwest,
being desirous to embrace the advantages of the now-prevailing breeze and
pleasant weather, so favourable to our examination of the coasts."

The purport of Vancouver's observations in the passage just cited will not
be correctly appreciated, unless his instructions are kept in mind, which
directed his attention exclusively to such inlets or rivers which should
appear to be navigable to sea-going vessels, and be likely to facilitate
in any considerable degree a communication with the northwest coast.
Vancouver seems to have advanced a step beyond Heceta in observing the
_river-coloured water_, and so determining the inlet not to be a strait of
the sea; but he rightly decided that the opening in the north part of the
bay was not worthy of attention, either in respect to his main object of
discovering a water-communication with the northwest coast, or to the
prospect of its affording a certain shelter to sea-going vessels.

Vancouver, as he approached De Fuca's Straits on 29th April, when off Cape
Flattery, fell in with the merchant ship Columbia, commanded by Mr. Robert
Gray, which had sailed from Boston on the 28th Sept., 1788. Captain Gray
had formerly commanded the Washington, when that vessel and the Columbia,
commanded by Captain John Kendrick, visited Nootka in 1788. Having given
Vancouver some information respecting De Fuca's Straits, he stated that he
had "been off the mouth of a river in the latitude of 46° 10', where the
outset, or reflux, was so strong as to prevent his entering it for nine
days. This," continues Vancouver, "was probably the opening passed by us
on the forenoon of the 27th, and was apparently then inaccessible, not
from the current, but from the breakers that extended across it." Gray at
this time had not succeeded in passing the bar at the mouth of the
Columbia. After parting from Vancouver, he continued his course to the
southward for the purposes of his summer trade. The extract from his own
log-book, which Mr. Greenhow has inserted in his Appendix, will furnish
the best account of his proceedings:--"May 11th, at 4 A.M. saw the
entrance of our desired port bearing E.S.E., distance six leagues; in
steering sails, and hauled our wind in shore. At 8 A.M., being a little to
windward of the entrance into the harbour, bore away and run in E.N.E.
between the breakers, having from five to seven fathoms water. When we
came over the bar, we found this to be a large river of fresh water, up
which we steered."

In the British statement it is admitted that "Mr. Gray, finding himself in
the bay formed by the discharge of the waters of the Columbia into the
Pacific, was the first to ascertain that this bay formed the outlet of a
great river--a discovery which had escaped Lieutenant Meares, when in
1788, four years before, he entered the same bay."

This passage has been quoted to show that the claim of Captain Gray to the
honour of having first crossed the bar of the river has not been impeached
by the British Commissioners. He gave to the river the name of his own
vessel, the Columbia.

The Columbia remained at anchor on the 12th and 13th. On the 14th of May,
Gray weighed anchor, and stood up the river N.E. by E.

The log-book of the Columbia furnishes the following extract:--

"We found the channel very narrow. At 4 P.M. we had sailed upwards of
twelve or fifteen miles, when the channel was so very narrow that it was
almost impossible to keep in it, having from three to eighteen fathoms
water, sandy bottom. At half-past four the ship took ground, but she did
not stay long before she came off; without any assistance. We backed her
off stern-foremost into three fathoms, and let go the small bower, and
moved ship with kedge and hawser. The jolly-boat was sent to sound the
channel out, but found it not navigable any further up; _so of course we
must have taken the wrong channel_. _So ends_, with rainy weather; many
natives alongside." On the following day Gray unmoored, and dropped down
the river with the tide. On the 18th he made the latitude of the entrance
to be 46° 17' north. On the 20th he succeeded, after some difficulty, in
beating over the bar out to sea.

This log-book, the authenticity of which is vouched for by Mr. Bulfinch,
of Boston, one of the owners of the Columbia, affords the best evidence
that Captain Gray's claim is limited to the discovery of the _mouth of the
Columbia_, a discovery different indeed _in degree_ from Heceta's or
Vancouver's, and entitled to higher consideration, but not different _in
kind_. It must be remembered that the problem to be solved was the
discovery of the Great River of the West, but this problem was surely not
solved by Gray, who expressly states that the channel which he explored
was not navigable any further up than twelve or fifteen miles from the
entrance; "so of course," he adds, "we must have taken the wrong channel."
But such a description would hardly have convinced the world that Gray had
succeeded in discovering the Great River, unless Lieutenant Broughton had
subsequently succeeded in entering the right channel, and had explored its
course for the distance of more than one hundred miles from the sea. But
the reputation of this enterprising man needs no fictitious laurels. He
was decidedly the first to solve the difficult question of their being a
passage, such as it is, over the bar of the river.

Mr. Greenhow, in commenting upon Gray's discovery, observes, "Had Gray,
after parting with the English ships, _not returned to the river_, and
ascended it as he did, there is every reason to believe that it would have
long remained unknown; for the assertion of Vancouver, that no opening,
harbour, or place of refuge for vessels was to be found between Cape
Mendocino and the Strait of Fuca, and that this part of the coast formed
one compact, solid, and nearly straight barrier against the sea, would
have served completely _to overthrow the evidence of the American
fur-trader_, and to prevent any further attempts to examine those shores,
or even to approach them."

Now the evidence of the American fur-trader, _had he not returned to the
river_, would have needed no Vancouver to overthrow it, for it would have
amounted to this, that Gray had been off the mouth of a river for nine
days, without being able to enter it; whereas Vancouver's own statement
would have been, that on the south side of Cape Disappointment there was
the appearance of an inlet or small river, "which did not however seem
accessible for vessels of our burthen," as breakers extended right across
it. Mr. Greenhow misrepresents Vancouver, when he states that Meares'
opinion was subscribed without qualification by Vancouver, for Vancouver
carefully limits his opinion of the river to its being inaccessible to
vessels of equal burthen with his own sloop of war, the Discovery.

Gray, after entering the Columbia, appears to have returned to Nootka, and
to have given to Señor Quadra, the Spanish commandant, a sketch of the
river. Vancouver, having attempted in vain to conclude a satisfactory
arrangement with Quadra in respect to the fulfilment of the first article
of the Nootka Convention, determined to re-examine the coast of New
Albion. With this object he sailed southward in the Discovery, accompanied
by the Chatham and the Dædalus. The Dædalus having been left to explore
Gray's harbour in 46° 53', the Discovery and Chatham proceeded round Cape
Disappointment, and the Chatham, under Lieutenant Broughton, was directed
to lead into the Columbia river, and to signalize her consort if only four
fathoms water should be found over the bar. The Discovery followed the
Chatham, till Vancouver found the water to shoal to three fathoms, with
breakers all around, which induced him to haul off to the westward, and
anchor outside the bar in ten fathoms. The Chatham, in the meantime, cast
anchor in the midst of the breakers, where she rode in four fathoms, with
the surf breaking over her. "My former opinion," writes Vancouver, "of
this port being inaccessible to vessels of our burthen was now fully
confirmed, with this exception, that in very fine weather, with moderate
winds and a smooth sea, vessels not exceeding 400 tons might, so far as we
were able to judge, gain admittance." It may be observed that the vessels
of the Hudson's Bay Company, by which the commerce of this part of the
country is almost exclusively carried on, do not exceed 360 tons, and draw
only fourteen feet water. Captain Wilkes, in the United States Exploring
Expedition, vol. iv., p. 489, speaks of a vessel of from 500 to 600 tons,
the Lausanne, having navigated the Columbia; on the other hand, the
Starling, which accompanied the Sulphur exploring vessel, under Captain
Belcher, in July, 1839, left her rudder on the bar, and the American
corvette, the Peacock, which attempted to enter the river in July, 1841,
was lost in very fine weather, having been drifted amongst the breakers by
the set of the current.

When it is known that the vessels of the Hudson's Bay Company have been
obliged to lie-to off the mouth of the Columbia for upwards of two months
before they could venture to cross the bar, and that vessels have been
detained inside the bar for upwards of six weeks, it must be acknowledged
that Vancouver's declaration of the probable character of the river has
not fallen very wide of the mark.

On the next day the Chatham succeeded, with the flood-tide, in leading
through the channel, and anchored in a tolerably snug cove inside Cape
Disappointment; but the Discovery, not having made so much way, was driven
out by a strong ebb tide into 13 fathoms water, where she anchored for the
night, and on the following day was forced by a gale of wind to stand out
to sea, and to abandon all hope of regaining the river.

On the Chatham rounding the inner point of Cape Disappointment, they were
surprised to hear a gun fired from a vessel, which hoisted English
colours, and proved to be the Jenny, a small schooner of Bristol,
commanded by Mr. James Baker, which had sailed from Nootka Sound direct to
England, before Vancouver started. This cove or bay inside Cape
Disappointment was in consequence named, by Lieut. Broughton, Baker's Bay,
which name it retains, and it appeared from Captain Baker's account that
this was not the first occasion of his entering the river, but that he had
been there in the earlier part of the year.

The Chatham in the meantime proceeded up the inlet, and having in her
course grounded for a short time on a shoal, anchored ultimately a little
below the bay which had terminated Gray's researches, to which Gray had
given his own name in his chart. The sketch of this, with which Vancouver
had been favoured by the Spanish commandant at Nootka, was found by
Broughton not to resemble much what it purported to represent, nor did it
mark the shoal on which the Chatham grounded, though it was an extensive
one, lying in mid-channel. The bay, for instance, which Lieut. Broughton
found to be not more than fifteen miles from Cape Disappointment, was,
according to the sketch, thirty-six miles distant. Broughton left the
Chatham here, and determined to pursue the further examination of the
channel in the cutter and the launch.

At the distance of about twenty-five miles from the sea, Broughton found
the stream narrow rather suddenly to about half a mile in breadth, which
seemed to warrant him in considering the lower part, (the width of which
was from three to seven miles,) to be a sound or inlet, and the true
entrance of the river itself to commence from the point where it
contracted itself. Broughton continued his ascent for seven days, making
but slow progress against a strong stream. At the end of that time he was
obliged to return from want of provisions, having reached a point which he
concluded to be about 100 miles distant from the Chatham's anchorage, and
nearly 120 from the sea. He was the more readily reconciled to the
abandonment of any further examination, "because even thus far the river
could hardly be considered as navigable for shipping." Previously,
however, to his departure, he formally "took possession of the river and
the country in its vicinity in his Britannic Majesty's name, having every
reason to believe that the subjects of no other civilised nation or state
had ever entered this river before." Broughton had fallen in with large
parties of Indians in his ascent of the river, and had been kindly
received by them. Amongst these was a friendly old chief, who accompanied
them almost throughout the voyage, and who assisted at the ceremony and
drank his Majesty's health on the occasion. It may be reasonably suspected
that this worthy old chief would have as readily joined the next comers in
drinking the health of the King of Spain, or the President of the United
States. From him Broughton endeavoured to obtain further information
respecting the upper country. "The little that could be understood was,
that higher up the river, they would be prevented from passing by falls.
This was explained by taking water up in his hands, and imitating the
manner of its falling from rocks, pointing at the same time to the place
where the river rises, indicating that its source in that direction would
be found at a great distance."

The furthest angle of the river which Broughton reached was called by him
Point Vancouver, and upon it stands in the present day Fort Vancouver, the
chief establishment of the Hudson's Bay Company. A little above this are
the Cascades, a series of falls and rapids extending more than half a
mile, which form the limit of the tide-way; about thirty miles higher up
are the Dalles, where the river rushes rapidly between vast masses of
rocks, and about four miles further are the _Chutes_ or Falls of the
Columbia, where the river first enters the gap in the Cascade mountains,
through which it finds its way to the ocean. Lieutenant Broughton, having
occupied twelve days in the examination of the channel, prepared to join
the Discovery without delay; but for four days the surf broke across the
passage of the bar with such violence, as to leave no apparent opening. At
last he succeeded in beating out, the Jenny schooner leading, as her
commander Mr. Baker was better acquainted with the course of the channel,
and after nearly losing their launch and the boat-keeper in the surf, they
once more reached the open sea. Such is the summary of the account, which
may be perused in full in the second volume of Vancouver's Voyage.

Mr. Greenhow (p. 248) considers that the distinction which Broughton and
Vancouver made "between the upper and lower portion of the Columbia, is
entirely destitute of foundation, and at variance with the principles of
our whole geographical nomenclature. Inlets and sounds," he continues,
"are arms of the sea running up into the land, and their waters, being
supplied from the sea, are necessarily salt; the waters of the Columbia
are on the contrary generally fresh and palatable within ten miles of the
Pacific, the violence and overbearing force of the current being
sufficient to prevent the further ingress of the ocean. The question
appears at first to be of no consequence: the following extract from
Vancouver's Journal will, however, serve to show that the quibble was
devised by the British navigators, with the unworthy object of depriving
Gray of the merits of his discovery:--'Previously to his (Broughton's)
departure, he formally took possession of the river, and the country in
its vicinity, in his Britannic Majesty's name, having every reason to
believe that the subjects of no other civilised nation or state had ever
entered this river before. In this opinion he was confirmed by Mr. Gray's
sketch, in which it does not appear that Mr. Gray either saw or ever was
within five leagues of its entrance.' This unjust view has been adopted by
the British Government and writers, and also, doubtless from inadvertency,
by some distinguished authors in the United States. It may, indeed, be
considered fortunate for Gray, that by communicating the particulars of
his discoveries, as he did, to Quadra, he secured an unimpeachable
witness of his claims: had he not done so, the world would probably never
have learned that a citizen of the United States was the first to enter
the greatest river flowing from America into the Pacific, and to find the
only safe harbour on the long line of coast between Port San Francisco and
the Strait of Fuca."

Mr. Greenhow may be perfectly justified in disputing the propriety of Lt.
Broughton's distinction. The words of the latter are,--"Between the ocean
and that which should properly be considered the entrance of the river, is
a space from three to seven miles wide, intricate to navigate on account
of the shoals that extend nearly from side to side, and it ought rather to
be considered as _a sound_ than as constituting a part of the river, since
the entrance into the river, which they reached about dark, was found not
to be more than half a mile wide, formed by the contracting shores of the
sound." It may fairly be admitted that the ordinary use of the terms
"sound," or "inlet," warrants the verbal criticism of Mr. Greenhow, and
that they are more usually employed to distinguish arms of the sea where
there is no fresh water, or tideways outside the bars of rivers.
Lieutenant Broughton, if we may judge from the context would have been
more correct had he used the term "estuary" instead of "sound," for, "in
common understanding," as Lord Stowell has observed, "the embouchure or
mouth of a river is that spot where the river enters the open space to
which the sea flows, and where the points of the coast project no
further." (Twee Gebroeden, 3 Robinson's Reports, p. 34.) At the same time,
after a careful perusal of Vancouver's journal, a protest must be entered
against any reader of that work, particularly against one who occupies the
position which Mr. Greenhow fills, attributing such motives to the British
navigator, or insinuating such a probability as that Gray's discovery
would have been suppressed by Vancouver, had not Gray fortunately secured
Quadra as an unimpeachable witness to it. Mr. Greenhow's jealousy for the
fame of his countryman may be excusable up to a certain point, but when he
states that Vancouver "did not hesitate to adopt unworthy means to deprive
the Americans of the reputation which they had justly earned by their
labours in exploring, and to blacken their characters as individuals," he
has allowed an unreasonable sensitiveness to hurry him into the commission
of the very fault which he censures in others, and has laid himself open
to the identical charge, mutatis mutandis, which he has set up against
Vancouver.

Had there been any _substantial_ misrepresentation on the part of
Vancouver in respect to what Gray actually did discover, "a want of good
faith" might have been reasonably imputed to him. Happily, however, for
Vancouver's memory, the extract from the log-book of the Columbia bears
out all the facts which Lieutenant Broughton alleges as to the extent of
Gray's researches. "From this point," the latter says, alluding to a
remarkable projecting point on the southern side, appearing like an
island, a little above Point George, to which the name of Tongue Point was
given, "was seen the centre of a deep bay, lying at the distance of seven
miles N. 26 E. This bay terminated the researches of Mr. Gray; and to
commemorate his discovery, it was called after him, Gray's Bay." "In Mr.
Gray's sketch," Broughton further informs us, "an anchor was placed in
this bay," so that he does not attempt in any way to misrepresent the
locality of the spot where Gray's researches terminated. Lieutenant
Broughton certainly denies the correctness of the sketch in respect to the
distance of this bay from the entrance of the river. "It was not more," he
writes, "than fifteen miles from Cape Disappointment, though according to
the sketch it measures thirty-six miles." But the log-book itself confirms
approximatively Lieutenant Broughton's statement, for it makes the
distance of the spot where Gray brought up his vessel to be about
twenty-two or twenty-five miles from the entrance between the bars, and
Cape Disappointment is six miles distant from the entrance, so that there
must have been an error in the sketch, if we admit the accuracy of the
log-book.

The result of this inquiry seems fully to warrant the position which the
British commissioners insisted on in 1826-7, that the discovery of the
Columbia river was _a progressive discovery_. Heceta made the first step
in 1775, when he discovered the bay, and concluded that "the place was the
mouth of some great river, or of some passage to another sea;" but
Heceta's report was not made public by the Spanish authorities. Meares, in
1788, confirmed Heceta's discovery of the bay, but impugned the
correctness of the Spanish charts, as to there being a river there with a
good port; his Voyages were published in London in 1790. Vancouver, having
seen Meares' account before he left England, examined the bay in April
1792, and at that time came to the conclusion that, though there was
river-coloured water in the bay, yet the opening was not worthy of
attention, as being inaccessible to vessels of the same burden as the
Discovery: his account was published in 1798. Gray, in the May following,
after having on a former occasion beat about in the bay for nine days
ineffectually, succeeded on his second visit in passing the bar, and
explored the estuary for more than twenty miles: the extract of his
log-book, which relates the particulars, was not made public before 1816.
Lieutenant Broughton in the same year may be considered to have completed
the discovery of the river, by ascending it for more than eighty miles
above the limits of Gray's researches, almost to the foot of the Cascades,
where the tide ceases to be felt: the particulars of this expedition were
published in the 2nd vol. of Vancouver's Voyage, in 1798.

The plenipotentiary of the United States, Mr. Gallatin, on the other hand,
repudiated the notion of Gray's enterprise being considered as only a step
in the progress of discovery, and maintained that the discovery of the
river belonged exclusively to the United States; that Quadra (or he should
have said, Heceta) had overlooked it; that Meares had likewise failed, and
Vancouver had been not more fortunate; and that Broughton's merit
consisted merely in performing with fidelity the mechanical duty of taking
the soundings 100 miles up its course. Upon the fact of this asserted
first discovery in 1792, followed by the settlement of Astoria in 1812,
Mr. Rush, announced, for the first time, in 1824, "that the United States
claimed in their own right, and in their absolute and exclusive
sovereignty and dominion, the whole of the country west of the Rocky
Mountains from the 42d to at least as far up as the 51st degree of north
latitude." "It had been ascertained that the Columbia extended by the
River Multnomah to as low as 42 degrees north, and by Clarke's river to a
point as high up as 51 degrees, if not beyond that point; and to this
entire range of country, contiguous to the original dominions, and made a
part of it by the almost intermingling waters of each, the United States,"
he said, "considered their title as established, by all the principles
that had ever been applied on this subject by the powers of Europe to
settlements in the American hemisphere. I asserted," he continued, "that a
nation discovering a country, by entering the mouth of its principal river
at the sea coast, must necessarily be allowed to claim and hold as great
an extent of the interior country as was described by the course of such
principal river, and its tributary streams."

Great Britain formally entered her dissent to such a claim, denying that
such a principle or usage had been ever recognised amongst the nations of
Europe, or that the expedition of Captain Gray, being one of a purely
mercantile character, was entitled to carry with it such important
national consequences, (British and Foreign State Papers, 1825-6.)

In the subsequent discussions of 1826-7, Great Britain considered it
equally due to herself and to other powers to renew her protest against
the doctrine of the United States, whilst on the other hand the United
States continued to maintain, that Gray's discovery of the Columbia river
gave, by the acknowledged law and usage of nations, a right to the whole
country drained by that river and its tributary streams.

Haying now passed in review the main facts connected with the discovery
and occupation of the Oregon territory, we may proceed to consider the
general principles of international law which regulate territorial title.




CHAPTER VII.

ON THE ACQUISITION OF TERRITORY BY OCCUPATION.

    Connexion of the Sovereignty of a Nation with the Domain.--Vattel. The
    Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement
    by a Nation.--Settlement by an Individual limited to the Acquisition
    of the Useful Domain (Dominium utile.) A Nation may occupy a Country
    by its Agents, as by settling a Colony. Kluber's Droits des Gens.--The
    Occupation must be the Act of the State.--Occupation constitutes a
    perfect Title.--Bracton de Legibus.--Wolff's Jus Gentium.--Acts
    accessorial to Occupation, such as Discovery, Settlement, &c., create
    only an imperfect Title.


"When a nation takes possession of a country to which no prior owner can
lay claim, it is considered as acquiring the _empire_ or sovereignty over
it, at the same time with the _domain_. For, since the nation is free and
independent, it can have no intention, in settling in a country, to leave
to others the rights of command, or any of those rights that constitute
sovereignty. The whole space over which a nation extends its government,
becomes the seat of its jurisdiction, and is called its _territory_."
(Vattel, b. i., § 205.)

The acquisition of sovereignty, therefore, attends as a necessary
consequence upon the establishment of a nation in a country. But a nation
may establish itself in a country, either by immigration in a body, or by
sending forth a colony; and when a nation takes possession of a vacant
country, and settles a colony there, "that country, though separated from
the principal establishment or mother country, naturally becomes a part of
the state, equally with its ancient possessions." (Vattel, b. i., § 210.)

The right of _domain_ in a nation corresponds to the right of _property_
in an individual. But every nation that governs itself by its own
authority and laws, without dependence on any foreign power, is a
sovereign state; and when it acts as a nation, it acts in a sovereign
capacity. When a nation therefore occupies a vacant country, it imports
its sovereignty with it, and its sovereignty entitles it not merely to a
disposing power over all the property within it, which is termed its
Eminent Domain, but likewise to an exclusive right of command in all
places of the country which it has taken possession of. In this respect,
then, a nation differs from an individual, that, although an independent
individual may settle in a country which he finds without an owner, and
there possess an independent domain (the dominium utile, as distinguished
from the dominium eminens,) yet he cannot arrogate to himself an exclusive
right to the country, or to the empire over it. His occupation of it would
be, as against other nations, rash and ridiculous (Vattel, b. ii., § 96;)
and it would be termed, in the language of the Jus Gentium, a "temeraria
occupatio, quæ nullum juris effectum parere potest," (Wolffii Jus Gentium,
§ 308.)

A nation, however, may delegate its sovereign authority to one or more of
its members for the occupation of a vacant country, equally as for other
purposes, where it cannot act in a body; in such cases the practice of
nations allows it to be represented by an agent. Thus the right of
settling a colony is a right of occupation by an agent. The colonists
represent the nation which has sent them forth, and occupy their new
country in the name of the mother country. But the colonists must be sent
forth _by the public authority of the nation_, otherwise they will possess
no national character, but will be considered to be a body of _emigrants_,
who have abandoned their country.

Thus, Kluber, in his "Droit des Gens Modernes de l'Europe:"--"Un état peut
acquérir des choses qui n'appartiennent à personne (_res nullius_) par
l'occupation (originaire;) les biens d'autrui au moyen de conventions
(occupation dérivative.).... Pour que _l'occupation_ soit légitime, la
chose dolt être susceptible d'une propriété exclusive; elle ne doit
appartenir à personne; _l'état doit avoir l'intention d'en acquérir la
propriété, et en prendre possession_ (the State ought to have an intention
to acquire the right of property in it, and to take possession of it;)
c'est à dire, la mettre entièrement à sa disposition et dans son pouvoir
physique."

_Occupation_, then, in this sense of the word, denotes the taking
possession of a territory previously vacant, which has either always been
unoccupied, or, if ever occupied, has been since abandoned. It constitutes
a perfect title, and its foundation may be referred to an axiom of natural
law: "Quod enim ante nullius est, id ratione naturali occupanti
conceditur." (Dig. l. 3, D. de Acq. Rer. Dom.) This principle, engrafted
into the Roman law, was as fully recognised by Bracton and by
Fleta:--"Jure autem gentium sive naturali dominia rerum acquiruntur multis
modis. Imprimis, per occupationem eorum, quæ non sunt in bonis alicujus,
et quæ nunc sunt ipsius regis de jure civili, et non communia ut olim."
(Bracton de Leg., l. ii., c. 1.)

Amongst professed writers upon international law, Wolff, who is justly
considered as the founder of the science, and who, in his voluminous
writings, furnished the stores out of which Vattel compiled his "Law of
Nations," has set forth so clearly this principle, as that upon which
title by occupation is based, that his words may be quoted from Luzac's
French translation of his "Institutions du Droit de la Nature et des
Gens:"--

"On appelle _occupation_, un fait par lequel quelqu'un déclare qu'une
chose qui n'est à personne doit être à lui, et la réduit en tel état
qu'elle peut être sa chose. Il paraît de là, que le droit d'occuper une
chose, ou de s'en emparer, appartient naturellement à chacun
indifféremment, ou bien que c'est un droit commun de tous les hommes, et
comme on appelle manière primitive d'acquérir, celle par laquelle on
acquiert le domaine d'une chose qui n'est à personne, il s'ensuit que
_l'occupation est la manière primitive d'acquérir_." (Part ii., ch. ii., §
ccx.)

As, however, the term _occupation_ has come to signify in common parlance
rather a temporary holding than a permanent possession,--e. g., the
occupation of Ancona by the French, the occupation of Lisbon by the
English, the occupation of the Four Legations by the Austrians, there is
an inconvenience in its ambiguity, and from this circumstance it has
resulted, that _occupancy_ is frequently employed to designate what is,
properly speaking, occupation. This however is to be regretted, as the
word occupancy is required in its own sense to mark the right to take
possession, as distinct from the right to keep possession,--the _jus
possidendi_ from the _jus possessionis_,--the _jus ad rem_, as civilians
would say, from the _jus in re_. Thus the right of a nation to colonise a
given territory to the exclusion of other nations is a right of
_occupancy_; the right of the colonists to exclude foreigners from their
settlements would be a right of _occupation_.

Mr. Wheaton, in his Elements of International Law, (l. i., chap. iv., p.
205,) says, "The exclusive right of every independent state to its
territory and other property is founded upon the title originally
acquired by _occupancy_, and subsequently confirmed by the presumption
arising from the lapse of time, or by treaties and other compacts of
foreign states."

It may be gathered from these writers, that to constitute a valid
territorial title by occupation, the territory must be previously vacant
(_res nullius_,) and the _state_ must intend to take and maintain
possession: and that the vacancy of the territory may be presumed from the
absence of inhabitants, and will be placed beyond question by the
acquiescence of other nations. If those conditions are fulfilled, the
proprietary title which results is _a perfect title against all other
nations_.

There are however several acts, that are accessorial to occupation, which
do not separately constitute a perfect title. Such acts are Discovery,
Settlement, Demarcation. Thus, discovery, may not be accompanied with any
intention to occupy, or may not be followed up by any act of occupation
within a reasonable time; settlement may be effected in territory not
vacant; boundaries may be marked out which encroach upon the territory of
others; so that acts of this kind will, separately, only found an
imperfect or conditional title: their combination, however, under given
circumstances, may establish an absolute and perfect title.




CHAPTER VIII.

ON TITLE BY DISCOVERY.

    Discovery not recognised by the Roman law.--Wolff.--The Discovery must
    be notified.--Illustration of the Principle in reference to Nootka
    Sound.--Vattel.--Discovery must be by virtue of a Commission from the
    Sovereign.--Must not be a transient Act.--Martens' Précis du Droit des
    Gens.--Kluber.--Bynkershoek.--Mr Wheaton.--Practice of Nations.--Queen
    Elizabeth.--Negotiations between Great Britain and the United States,
    in 1824.--Nootka Sound Controversy.--Discussions between the United
    States and Russia, in 1822.--Declaration of British Commissioners, in
    1826.--Mr. Gallatin's View.--Conditions attached to Discovery.--No
    second Discovery.--Wolff.--Lord Stowell.--Progressive
    Discovery.--Dormant Discoveries inoperative for Title.


Among the acts which are accessorial to occupation, the chief is
Discovery. The title, however, which results from discovery, is only an
imperfect title. It is not recognised in the Roman law, nor has it a place
in the systems of Grotius or Puffendorff. The principle, however, upon
which it is based is noticed by Wolff:--

"Pareillement, si quelqu'un renferme un fonds de terre dans des limites,
ou la destine à quelque usage par un acte non passager, ou qui, se tenant
sur ce fonds limité, il dise en présence d'autres hommes, qu'il veut que
ce fonds soit à lui, il s'empare." (Institutes du Droit des Gens, § 213.)

To this passage M. Luzac has appended the following note, pointing out the
application of the principle to international relations:--

"Nous ne trouvons pas cette occupation dans le droit Romain. C'est sur
elle que sont fondés les droits que les puissances s'attribuent, en vertu
des découvertes."

It will be seen from the text of M. Wolff, that the intention to take
possession at the time of discovery must be declared. The comity of
nations, then, presumes that the execution will follow the intention. But
the reason of the thing requires that the discovery should be notified at
the time when it takes place, otherwise, where actual possession has not
ensued, the presumption will be altogether against a discovery, or if
there had been a discovery, that it was a mere passing act, that the
territory was never taken possession of, or if so, was abandoned
immediately. Unless then the intention to appropriate can be presumed from
the announcement of the discovery, which the comity of nations will
respect,--if the first comer has not taken actual possession, but has
passed on, the presumption will be that he never intended to appropriate
the territory. Thus a discovery, when it has been concealed from other
nations, has never been recognised as a good title: it is an inoperative
act.

A case in point may be cited to illustrate the application of this
principle. Mr. Greenhow (p. 116) observes, in reference to the voyage of
Perez in 1775,--"The Government of Spain perhaps acted wisely in
concealing the accounts of this expedition, which reflected little honour
on the courage or the science of the navigators: but it has thereby
deprived itself of the means of establishing beyond question the claim of
Perez to the discovery of the important harbour called Nootka Sound, which
is now, by general consent, assigned to Captain Cook."

Vattel (b. i., l. xviii., § 207) discusses this title at large:--

"All mankind have an equal right to things that have not yet fallen into
the possession of any one, and those things belong to the person who first
takes possession of them. When therefore a nation finds a country
uninhabited, and without an owner, it may lawfully take possession of it,
and _after it has sufficiently made known its will in this respect_, it
cannot be deprived of it by another nation. Thus navigators going on
voyages of discovery, furnished _with a commission 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; and this title has been
usually respected, provided it was soon after followed by a real
possession."

According to this statement, the act of discovery must be sanctioned by a
commission from the sovereign, and the will of the nation to take
possession must be by its agent sufficiently made known. What acts should
be respected by the courtesy of nations, and be held sufficient to make
known formally the will of a nation to avail itself of a discovery, has
been a subject of much dispute. The tendency, however, both of writers and
statesmen, has been to limit rather than to extend the title by discovery,
ever since the Papal Bulls of the 16th century enlarged it to an
inconvenient extent, to the exclusive benefit of two favoured nations.

Thus Vattel:--"The law of nations will, therefore, not acknowledge the
property and sovereignty of a nation over any uninhabited countries except
those of which it has really taken actual possession, in which it has
formed settlements, or of which it makes actual use. In effect, when
navigators have met with desert countries in which those of other nations
had, in their transient visits, erected some monuments to show their
having taken possession of them, they have paid as little regard to that
empty ceremony as to the regulation of the Popes, who divided a great part
of the world between the crowns of Castile and Portugal."

To the same purport, Martens, in his Précis du Droit des Gens, § 37:--

"Supposé que l'occupation soit possible, it faut encore qu'elle ait eu
lieu effectivement,--que le fait de la prise de possession ait concouru
avec la volonté manifeste de s'en approprier l'objet. La simple
déclaration de volonté d'une nation ne suffit pas non plus qu'une donation
papale, ou une convention entre deux nations pour imposer à d'autres le
devoir de s'abstenir de l'usage ou de l'occupation de l'objet en question.
Le simple fait d'avoir été le premier à découvrir ou à visiter une île,
&c., abandonnée ensuite, semble insuffisant, même de l'aveu des nations,
tant qu'on n'a point laissé de traces permanentes de possession et de
volonté, et ce n'est pas sans raison qu'on a souvent disputé entre les
nations, comme entre les philosophes, si des croix, des poteaux, des
inscriptions, &c., suffisent pour acquérir ou pour conserver la propriété
exclusive d'un pays qu'on ne cultive pas."

Kluber, to the same effect, writes thus: (§ 126)--"Pour acquérir une chose
par le moyen de l'occupation, il ne suffit point d'en avoir seulement
l'intention, ou de s'attribuer une possession purement mentale; la
déclaration même de vouloir occuper, faite antérieurement à l'occupation
effectuée par un autre, ne suffirait pas. Il faut qu'on ait réellement
occupé le premier, et c'est par cela seul qu'en acquérant un droit
exclusif sur la chose, on impose à tout tiers l'obligation de s'en
abstenir. L'occupation d'une partie inhabitée et sans maître du globe de
la terre, ne peut donc s'étendre plus loin qu'on ne peut tenir pour
constant qu'il y ait eu _effectivement prise de possession, dans
l'intention de s'attribuer la propriété_. Comme preuves d'une pareille
prise de possession, ainsi que de la continuation de la possession en
propriété, peuvent servir tous les signes extérieurs qui marquent
l'occupation et la possession continue."

On this passage there is the following note:--"Le droit de propriété
d'état peut, d'après le droit des gens, continuer d'exister, sans que
l'état continue la possession corporelle. Il suffit qu'il existe un signe
qui dit, que la chose n'est ni _res nullius_, ni délaissée. En pareil cas
personne ne saurait s'approprier la chose, sans ravir de fait, à celui qui
l'a possédée jusqu'alors en propriété, ce qu'il y a opéré de son influence
d'une manière légitime: enlever ceci ce serait blesser le droit du
propriétaire."

It would be difficult to determine theoretically what would constitute a
sufficient sign that the territory is not vacant, or abandoned.
Bynkershoek, who was opposed to the continuance of proprietary right from
discovery, unless corporeal possession was maintained, subsequently
qualified his view. "Præter animum possessionem desidero, sed
qualemcunque, quæ probet, me nec corpore desiisse possidere." (De Dominio
Maris, ch. i., De Origine Dominii.)

Mr. Wheaton, in his work on International Law, (vol. i., ch. iv., § 5,)
writes thus:--"The claim of European nations to the possessions held by
them in the New World discovered by Columbus and other adventurers, and to
the territories which they have acquired on the continents and islands of
Africa and Asia, was originally derived from discovery or conquest and
colonisation, and has since been confirmed in the same manner by positive
compact."

The practice of nations seems fully to bear out the theory of jurists, as
it may be gathered from the language of sovereigns and statesmen. Thus, in
reference to the northwest coast of America, on occasion of the earliest
dispute between the crowns of Spain and England, Queen Elizabeth refused
to admit the exclusive pretensions of the Spaniards. When Mendoza, the
Spanish ambassador, remonstrated against the expedition of Drake, she
replied, "that she did not understand why either her subjects, or those of
any other European prince, should be debarred from traffic in the Indies:
that, as she did not acknowledge the Spaniards to have any title by
donation of the Bishop of Rome, so she knew no right they had to any
places other than those they were in actual possession of; for that their
having touched only here and there upon a coast, and given names to a few
rivers or capes, were such insignificant things as could in no ways
entitle them to a propriety further than in the parts where they actually
settled, and continued to inhabit." (Camden's Annals, anno 1580.)

Such was the language of the Crown of England in the sixteenth century,
and in no respect is the language of Great Britain altered in the present
day. Thus, in reference to the negotiations between Great Britain and the
United States, in 1824, Mr. Rush, in a letter to Mr. Adams, of August 12,
1824, writes thus:--"As to the alleged prior discoveries of Spain all
along that coast, Britain did not admit them, but with great
qualification. She could never admit that the mere fact of Spanish
navigators having first seen the coast at particular points, even where
this was capable of being substantiated as the fact, without any
subsequent or efficient acts of sovereignty or settlement following on the
part of Spain, was sufficient to exclude all other nations from that
portion of the globe." (State Papers, 1825-26, p. 512.)

But the Spanish crown itself, on the occasion of the Nootka Sound
controversy, felt that a claim to exclusive territorial title could not be
reasonably maintained on the plea of mere discovery. Thus, in the
Declaration of his Catholic Majesty, on June 4, 1790, which was
transmitted to all the European Courts, and consequently bound the Crown
of Spain in the face of all nations, the following precise language was
employed:--

"Nevertheless, the King does deny what the enemies to peace have
industriously circulated, that Spain extends pretensions and rights of
sovereignty over the whole of the South Sea, as far as China. When the
words are made use of, 'In the name of the King, his sovereignty,
navigation, and exclusive commerce to the continent and islands of the
South Sea,' it is the manner in which Spain, in speaking of the Indies,
has always used these words,--that is to say, to the continent, islands,
and seas which belong to his Majesty, _so far as discoveries have been
made and secured to him by treaties and immemorial possession, and
uniformly acquiesced in_, notwithstanding some infringements by
individuals, who have been punished upon knowledge of their offences. And
the King sets up no pretensions to any possessions, the right to which he
cannot prove by irrefragable titles."

The pretensions of Spain to absolute sovereignty, commerce, and
navigation, had already been rejected by the British Government, and they
had insisted that English subjects, trading under the British flag, "have
an indisputable right to the enjoyment of a free and uninterrupted
navigation, commerce, and fishery; and to the possession of such
establishments as they should form, _with the consent of the natives of
the country, not previously occupied by any of the European nations_."

Again, the Crown of Spain, in demanding assistance from France, according
to the engagements of the Family Compact, rested her supposed title upon
"treaties, demarcations, _takings of possession_, and the most decided
acts of sovereignty exercised by the Spaniards from the reign of Charles
II., and authorised by that monarch in 1692."

It will thus be seen that Spain, in setting up a title by discovery,
supported her claims by alleging that the act was authorised by the Crown,
was attended with "takings of possession," and was confirmed by treaties,
e. g., that of Utrecht.

To a similar purport, in the discussions which took place between Russia
and the United States of America, in respect to the north-west coast of
America, which ultimately resulted in the convention signed at St.
Petersburgh, 5/17 April, 1824, the Chevalier de Poletica, the Russian
minister at Washington, in his letter of 28th February, 1822, to the
American Secretary of State, grounded the claims of Russia upon these
three bases, as required by the general law of nations and immemorial
usage among nations:--"The title of first discovery; the title of first
occupation; and, in the last place, that which results from a peaceable
and uncontested possession of more than half a century." (British and
Foreign State Papers, 1821-22, p. 485.)

To a similar purport the British Commissioners, Messrs. Huskisson and
Addington, in the sixth conference held at London, December 16, 1826,
maintained this doctrine:--"Upon the question how far prior discovery
constitutes a legal claim to sovereignty, the law of nations is somewhat
vague and undefined. It is, however, admitted by the most approved
writers, that mere accidental discovery, unattended by exploration--by
formally taking possession in the name of the discoverer's sovereign--by
occupation and settlement, more or less permanent--by purchase of the
territory, or receiving the sovereignty from the natives--constitutes the
lowest degree of title; and that it is only in proportion as first
discovery is followed by any or all of these acts, that such title is
strengthened and confirmed."

In accordance with the same view, the plenipotentiary of the United
States, Mr. Gallatin, in his counter-statement, which Mr. Greenhow has
appended to the second edition of his work, asserts that "Prior discovery
gives a right to occupy, provided that occupancy take place within a
reasonable time, and is followed by permanent settlements and by the
cultivation of the soil."

It thus seems to be universally acknowledged, that discovery, though it
gives a right of occupancy, does not found the same perfect and exclusive
title which grows out of occupation; and that unless discovery be followed
within a reasonable time by some sort of settlement, it will be presumed
either to have been originally inoperative, or to have been subsequently
abandoned.

It seems likewise to be fully recognised by the law of nations, as based
upon principles of natural law, and as gathered from the language of
negotiations and conventions, that in order that discovery should
constitute an inchoate title to territory, it must have been authorised by
the sovereign power, must have been accompanied by some act of taking
possession significative of the intention to occupy, and must have been
made known to other nations.

Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it down, that "even in
newly discovered countries, _where a 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_."

There can be no second discovery of a country. In this respect title by
discovery differs from title by settlement. A title by a later settlement
may be set up against a title by an earlier settlement, even where this
has been formed by the first occupant, if the earlier settlement can be
shown to have been abandoned.

M. Wolff explains the reason of this very clearly (§ cciii.:)--"On dit
qu'une chose est abandonnée, si simplement son maître ne veut pas qu'elle
soit plus long temps sienne, c'est à dire, que l'acte de sa volonté ne
contienne rien de plus que ceci, que la chose ne doit plus être à lui.
D'où il paroit, que celui qui abandonne une chose cesse d'en être le
maître, et que par conséquent une chose abandonnée devient une chose qui
n'est à personne; mais qu'aussi long temps que le maître n'a pas
l'intention d'abandonner sa chose, il en reste le maître."

The same writer observes elsewhere (§ MCMXXXIX.)--"L'abandon requis pour
l'usucaption, et pour la préscription qui en est la suite, ne se présume
pas aussi aisément contre les nations qu'entre les particuliers, à cause
d'un long silence."

A title by second discovery cannot, from the nature of the thing, be set
up against a title by first discovery. The term _second discovery_ itself
involves a contradiction, and where the discovery has been progressive,
"further discovery" would seem to be the more correct phrase. A case can
certainly be imagined, where a later discovery may be entitled to greater
consideration than a prior discovery, namely, where the prior discovery
has been kept secret; but in such a case the prior discovery is not a
discovery which the law of nations recognises, for it has not been made
known, at the time when it took place, to other nations; and the
inconvenience which would attend the setting up of claims of discovery
long subsequently to the event upon which they are professed to be based,
would be so great, that the comity of nations does not admit it. The
comity of nations, indeed, in sanctioning title by discovery at all, as
distinct from title by occupation, has sought to strengthen rather than to
impugn the proprietary right of nations; but no territorial title would be
safe from question, if the dormant ashes of alleged discoveries might at
any time be raked up.




CHAPTER IX.

TITLE BY SETTLEMENT.

    Title by Settlement an imperfect Title.--Presumption of Law in its
    Favour.--Made perfect by undisturbed Possession.--Wheaton.--Title by
    Usucaption or Prescription.--Vattel.--Acquiescence a Bar to
    conflicting Title of Discovery.--Hudson's Bay Settlements.--Treaty of
    Utrecht.--The Vicinitas of the Roman Law.--Mid-channel of
    Rivers.--Contiguity, as between conterminous States, a reciprocal
    Title.--Negotiations between Spain and the United States of
    America.--Vattel.--Territorial Limits extended by the Necessity of the
    Case.--Right of Maritime Jurisdiction, how far accessorial to Right of
    Territory.--Right of Pre-emption.--New Zealand.--North American
    Indians.--Right of Innocent Use.


Title by settlement, like title by discovery, is of itself an imperfect
title, and its validity will be conditional upon the territory being
vacant at the time of the settlement, either as never having been
occupied, or as having been abandoned by the previous occupant. In the
former case, it resolves itself into title by occupation; in the latter,
the consent of the previous occupant is either expressed by some
convention, or presumed from the possession remaining undisputed. Title by
settlement, however, differs from title by discovery, or title by
occupation, in this respect,--that no second discovery, no second
occupation can take place, but a series of settlements may have been
successively made and in their turn abandoned, so that the last
settlement, when confirmed by a certain prescription, may found a good
territorial title. Again, the presumption of law will always be in favour
of a title by settlement. "Commodum possidentis in eo est, quod etiamsi
ejus res non sit, qui possidet, si modo actor non potuerit suam esse
probare, remanet in suo loco possessio; propter quam causam, cum obscura
sint utriusque jura contra petitorem judicari solet." (Inst., l. iv., tit.
15, § 4.)

Where title by settlement is superadded to title by discovery, the law of
nations will acknowledge the settlers to have a perfect title; but where
title by settlement is opposed to title by discovery, although no
convention can be cited in proof of the discovery having been waived,
still, a tacit acquiescence on the part of the nation that asserts the
discovery, during a reasonable lapse of time since the settlement has
taken place, will bar its claim to disturb the settlement. Thus, Mr.
Wheaton (part ii., chap. iv., § 5) writes:--"The constant and approved
practice of nations shows, that by whatever name it be called, the
uninterrupted possession of territory or other property, for a certain
length of time, by one state, excludes the claim of every other, in the
same manner as by the law of nations, and the municipal code of every
civilized nation, a similar possession by an individual excludes the claim
of every other person to the article of property in question. This rule is
founded upon the supposition, confirmed by constant experience, that every
person will naturally seek to enjoy that which belongs to him; and the
inference fairly to be drawn from his silence and neglect, of the original
defect of his title, or his intention to relinquish it."

Title, then, by settlement, though originally imperfect, may be thus
perfected by enjoyment during a reasonable lapse of time, the presumption
of law from undisturbed possession being, that there is no prior owner,
because there is no claimant,--no better proprietary right, because there
is no asserted right. The silence of other parties presumes their
acquiescence: and their acquiescence presumes a defect of title on their
part, or an abandonment of their title. A title once abandoned, whether
tacitly or expressly, cannot be resumed. "Celui qui abandonne une chose
cesse d'en être le maître, et par conséquent une chose abandonnée devient
une chose qui n'est à personne." (Wolff, cciii.)

Title by settlement, then, as distinguished from title by discovery, when
set up as a perfect title, must resolve itself into title by _usucaption_
or _prescription_. Wolff defines usucaption to be an acquisition of domain
founded on a presumed desertion. Vattel says it is the acquisition of
domain founded on long possession, uninterrupted and undisputed, that is
to say, an acquisition solely proved by this possession. _Prescription_,
on the other hand, according to the same author, is the exclusion of all
pretensions to a right--an exclusion founded on the length of time during
which that right has been neglected; or, according to Wolff's definition,
it is the loss of an inherent right by virtue of a presumed consent.
Vattel, writing in French, and observing that the word usucaption was but
little used in that language, made use of the word _prescription_
whenever there were no particular reasons for employing the other. The
same remark may be applied in reference to our own language, and thus this
title is generally spoken of as _title by prescription_.

What lapse of time is requisite to found a valid title by prescription has
not been definitely settled. The law of nature suggests no rule. Where,
however, the claimant cannot allege undoubted ignorance on his part, or on
the part of those from whom he derives his right, or cannot justify his
silence by lawful and substantial reasons, or has neglected his right for
a sufficient number of years as to allow the respective rights of the two
parties to become doubtful, the presumption of relinquishment will be
established against him, and he will be excluded by ordinary prescription.
Lapse of time, in the case equally of nations as of individuals, robs the
parties of the means of proof: so that if a _bonâ fide_ possession were
allowed to be questioned by those who have acquiesced for a long time in
its enjoyment by the possessors, length of possession, instead of
strengthening, would weaken territorial title. This result would be so
generally inconvenient, as to be inadmissible.

Thus, in regard to the territories of the Hudson's Bay Company, it was
alleged in the negotiations preliminary to the Treaty of Utrecht, that the
French had acquiesced in the settlement of the Bay of Hudson by the
Company incorporated by Charles II. in 1663; since M. Fontenac, the
Governor of Canada, in his correspondence with Mr. Baily, who was Governor
of the Factories in 1637, never complained, "for several years, of any
pretended injury done to the French by the said Company's settling a trade
and building of forts at the bottom of the bay." (General Collection of
Treaties, &c. London, 1710-33, vol. i., p. 446.) The King of England, it
is true, in his charter had set forth the title of the British Crown, as
founded on discovery: the title by discovery, however, required to be
perfected by settlement; and thus, in the negotiations, the subsidiary
title by settlement was likewise set up by the British Commissioners, and
the acquiescence of the French was alleged, either as a bar to their
setting up any conflicting title by discovery, or as establishing the
presumption of their having abandoned their asserted right of discovery.

What amount of _contiguous_ territory attaches to a settlement, so as to
prevent the titles of two nations from conflicting by virtue of adjoining
settlements, seems to be governed by no fixed rule, but must depend on the
circumstances of the case. Vattel observes (l. ii., § 95,) "If, at the
same time, two or more nations discover and take possession of an island,
or _any other desert land without an owner_, they ought to agree between
themselves, and make an equitable partition; but, if they cannot agree,
each will have the right of empire and the domain in the parts in which
they first settled." The title of _vicinitas_ was recognised in the Roman
law, in the case of recent alluvial deposits, as entitling the possessor
of the adjoining bank to a claim of property; but, if it were an island
formed in the mid-channel, there was a common title to it in the
proprietors of the two banks. "Insula nata in flumine, quod frequenter
accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui
ab utraque parte fluminis prope ripam prædia possident, pro modo
latitudinis cujusque fundi, quæ latitudo prope ripam sit: quod si alteri
parti proximior est, eorum est tantum, qui ab ea parte prope ripam prædia
possident." (Inst. ii., tit. i., § 22.) So, in the case where a river
abandons its former channel, the ancient bed belongs to those "qui prope
ripam prædia possident;" and in the Digest (xli., tit. i., l. 7,) we have
a case supposed where a river has changed its course, and occupied for a
time the entire property (totum agrum) of an individual, and then deserted
its new channel: the Roman law did not consider that, strictly speaking,
the title of the former proprietor revived, inasmuch as he had no
adjoining land. "Cujus tamen _totum agrum_ novus alveus occupaverit, licet
ad priorem alveum reversum fuerit flumen; non tamen is, cujus is ager
fuerat, stricta ratione quicquam in eo alveo habere potest: quia et ille
ager, qui fuerat, desiit esse, amissâ propriâ formâ: et quia vicinum
prædium nullum habet, non potest _ratione vicinitatis_ ullam partem in eo
alveo habere."

Again, in the case of a river, the banks of which are possessed by
contiguous states, the presumption of law is, that the _Thalweg_, or
mid-channel, is the mutual boundary; since rivers are, in the case of
conterminous states, _communis juris_, unless acknowledged by them to be
otherwise, or prescribed for by one of the parties. "The general
presumption," observes Lord Stowell, (in the Twee Gebroeders, 3 Rob., p.
339,) "certainly bears strongly against such exclusive rights, and the
title is matter to be established on the part of those claiming under it,
in the same manner as all other demands are to be substantiated, by clear
and competent evidence."

A title by contiguity, as between conterminous states, would thus appear
to be a reciprocal title: it cannot be advanced by one party, excepting as
a principle which sanctions a corresponding right in the other. The
practice is in accordance with this. Thus, the United States of America,
in its discussions with Spain respecting the western boundary of
Louisiana, contended, that "whenever one European nation makes a
discovery, and takes possession of any portion of that continent (sc., of
America,) and another afterwards does the same at some distance from it,
where the boundary between them is not determined by the principle above
mentioned, (sc., actual possession of the sea-coast,) the middle distance
becomes such of course." (British and Foreign State Papers, 1817-18, p.
328.)

Circumstances however will sometimes create exceptions, as for instance,
where the control of a district left unoccupied is necessary for the
security of a state, and not essential to that of another: in this case
the principle of _vicinitas_ would be overruled by higher considerations,
as it would interfere with the perfect enjoyment of existing rights of
established domain.

Thus Vattel, l. i., § 288. "A nation may appropriate to herself those
things of which the free and common use would be prejudicial or dangerous
to her. This is a second reason for which governments extend their
dominion over the sea along their coasts, as far as they are able to
protect their rights. It is of considerable importance to the safety and
welfare of the state that a general liberty be not allowed to all comers
to approach so near their possessions, especially with ships of war, as to
hinder the approach of trading nations, and molest their navigation." And
again, after stating that it was not easy to determine strictly the limits
of this right, he goes on to say: "Each state may, on this head, make what
regulation it pleases so far as respects the transactions of the citizens
with each other, or their concerns with their sovereign, but, between
nation and nation, all that can reasonably be said is, that in general,
the dominion of the state over the neighboring sea extends as far as her
safety _renders it necessary_ and her power is able to assert it; since on
the one hand she cannot appropriate to herself a thing that is common to
all mankind, such as the sea, except so far as she _has need of it for
some lawful end_, and on the other, it would be a vain and ridiculous
pretension to claim a right which she were wholly unable to assert." At
present, by the general law of nations, the possession of the coast is
held to entitle a nation to exclusive jurisdiction over the adjoining seas
to the extent of a marine league, as being necessary for the free
execution of her own municipal laws, and as being within the limits which
she can command by her cannon. On the ground then of her own right of
self-preservation, a nation which has made a settlement may possess a
perfect right of excluding other nations from settling within a given
distance. This right, however, is evidently an accessory of the right of
settlement.

A further accessorial right of settlement has, in modern times, been
recognised by the practice of civilised nations in both hemispheres,
namely, a right of pre-emption from the aboriginal inhabitants in favor of
the nation which has actually settled in the country. It is this right
which Great Britain asserts against all other civilised nations in respect
to New Zealand, and which the United States of America assert against all
other civilised nations in respect to the native Indians. The claim
involved in it is evidently based upon the principle, that the acquisition
of such territory by any other nation would be prejudicial to the full
enjoyment of the existing territorial rights of the nation which has made
settlement there. Such seems to be the only recognised ground upon which a
_perfect right of contiguity_ can be set up. The principle of mere
vicinity in the case of nations, unless strictly limited, will only result
in furnishing a graceful pretext for the encroachments of the strong upon
the weak, whenever a powerful state should cast a longing eye upon an
adjoining district, and feel a natural inclination to render its own
possessions more complete:

                          Oh si angulus ille
  Proximus accedat, qui nunc deformat agellum.

The right of _innocent use_ seems to have been admitted into the code of
international law in order to obviate the strength of this temptation, but
it is only an imperfect right, unlike that of necessity, and all attempts
to construct a title upon principles of convenience can result only in
imperfect titles, which require the express acknowledgment of other
nations to give them validity.




CHAPTER X.

ON DERIVATIVE TITLE.

    Title by Conquest.--Title by
    Convention.--Vattel--Martens.--Wheaton.--The Practice of
    Nations.--United States.--Great Britain.--Kent's Commentaries.--Mixed
    Conventions.--The Fisheries of Newfoundland.--Treaty of
    Paris.--Distinction between Rights and Liberties.--Permanent
    Servitude.--Negotiations in 1818.--Mr. Adams' Argument.--Lord
    Bathurst's Letter.--Mr. Adams' Reply.--Convention of 1818.


Derivative title may result from involuntary or voluntary cession
(_traditio._) Involuntary cession takes place when a nation vanquished in
war abandons its territory to the conqueror who has seized it. Voluntary
cession, on the other hand, is marked by some compact or convention; its
object may be either to prevent a war, or to cement a peace. The repeated
occurrence of such voluntary cessions in later times, has led the chief
writers on international law to make a distinction accordingly between
transitory conventions, which mark such cessions, and treaties properly so
called.

Vattel, b. xi., ch. xii., § 153, lays it down that,--

"The compacts which have temporary matters for their object are called
agreements, conventions, and pactions. They are accomplished by one single
act, and not by repeated acts. These compacts are perfected in their
execution once for all; treaties receive a successive execution, whose
duration equals that of the treaty."

Martens, § 58, to the same effect observes,--

"Les traités de cession, de limites, d'échange, et ceux même qui
constituent une servitude de droit public, ont la nature des conventions
transitoires; les traités d'amitié, de commerce, de navigation, les
alliances égales et inégales, ont celle des traités proprement dits
(_fædera._)

"Les conventions transitoires sont perpétuelles par la nature de la
chose." (§ 1.)

Mr. Wheaton, part iii., c. 11, follows in the same line:--

"General compacts between nations may be divided into what are called
transitory conventions, and treaties properly so called. The first are
perpetual in their nature, so that being carried into effect, they subsist
independent of any change in the sovereignty and form of government of the
contracting parties; and although their operation may in some cases be
suspended during war, they revive on the return of peace without any
express stipulation. Such are treaties of cession, boundary, or exchange
of territory, or those which create a permanent servitude in favor of one
nation within the territory of another."

If we look to the practice of nations, we find that the tribunals of the
United States, equally with those of Great Britain, maintain this
doctrine. Thus in the case of The Society for the Propagation of the
Gospel in Foreign Parts v. Town of Newhaven, in Wheaton's Reports of Cases
adjudged in the Supreme Court of the United States, Feb. 1823, vol. viii.,
p. 494, Mr. Justice Washington, in delivering judgment for the plaintiffs,
said, "But we are not inclined to admit the doctrine urged at the bar,
that treaties become extinguished, ipso facto, by war between the two
governments, unless they should be revived by an express or implied
renewal on the return of peace. Whatever may be the latitude of doctrine
laid down by elementary writers on the law of nations, dealing in general
terms in relation to this subject, we are satisfied that the doctrine
contended for is not universally true. There may be treaties of such a
nature, as to their object and import, as that war will put an end to
them; but where treaties contemplate a permanent arrangement of
territorial and other national rights, or which, in their terms, are meant
to provide for the event of an intervening war, it would be against every
principle of just interpretation to hold them extinguished by the event of
the war. If such were the law, even the treaty of 1783, so far as it fixed
our limits, and acknowledged our independence, would be gone, and we
should have had again to struggle for both upon original revolutionary
principles. Such a construction was never asserted, and would be so
monstrous as to supersede all reasoning.

"We think, therefore, that treaties stipulating for permanent rights and
general arrangements, and professing to aim at perpetuity, and to deal
with the case of war as well as of peace, do not cease on the occurrence
of war, but are at most only suspended while it lasts; and unless they are
waived by the parties, or new and repugnant stipulations are made, they
revive in their operation at the return of peace."

In the case of Sutton v. Sutton, 1 Russell and Mylne, p. 663, which was
decided by Sir J. Leach, in the Rolls Court in London, in 1830, a question
was raised whether by the ninth article of the treaty of 1794, between
Great Britain and the United States, American citizens who held lands in
Great Britain on Oct. 20, 1795, and their heirs and assigns, are at all
times to be considered, as far as regards those lands, not as aliens, but
as native subjects of Great Britain. The 28th article of the treaty
declared that the ten first articles should be permanent, but the counsel
in support of the objection to the title contended, that "it was
impossible to suggest that the treaty was continuing in force in 1813; it
necessarily ceased with the commencement of the war. The 37 G. 3, c. 97,
could not continue in operation a moment longer without violating the
plainest words of the Act. That the word 'permanent' was used, not as
synonymous with 'perpetual or everlasting,' but in opposition to a period
of time expressly limited." On the other hand, the counsel in support of
the title maintained that "the treaty contained articles of two different
descriptions; some of them being temporary, others of perpetual
obligation. Of those which were temporary, some were to last for a limited
period; such as the various regulations concerning trade and navigation;
and some were to continue so long as peace subsisted, but being
inconsistent with a state of war, would necessarily expire with the
commencement of hostilities. There were other stipulations which were to
remain in force in all time to come, unaffected by the contingency of
peace or war. For instance, there are clauses for fixing the boundaries of
the United States. Were the boundaries so fixed to cease to be the
boundaries, the moment that hostilities broke out?"

The Master of the Rolls, in his judgment, said, "The privileges of natives
being reciprocally given, not only to the actual possessors of lands, but
to their heirs and assigns, it is a reasonable construction that it was
the intention of the treaty, _that the operation of the treaty should be
permanent_, and not depend upon the continuance of a state of peace."

"The Act of the 37 G. 3, c. 95, gives full effect to this article of the
treaty in the strongest and clearest terms; and if it be, as I consider
it, the true construction of this article, that it was to be permanent,
and independent of a state of peace or war, then the Act of Parliament
must be held in the 24th section, to declare this permanency, and when a
subsequent section provides that the act is to continue in force, so long
only as a state of peace shall subsist, it cannot be construed to be
directly repugnant and opposed to the 24th section, but is to be
understood as referring to such provisions of the Act only as would in
their nature depend upon a state of peace."

The third article, however, of the Treaty of 1794, which may be referred
to in Martens' Recueil, ii., p. 497, was of a mixed character, as it
recognised a right of one kind, and conceded a liberty of another kind.

"It is agreed, that the people of the United States shall continue to
enjoy, unmolested, the _right_ to take fish of every kind on the Grand
Bank, and on other banks of Newfoundland; also, in the Gulf of St.
Lawrence and all other places in the sea where the inhabitants of both
countries used, at any time heretofore, to fish. And also, that the
inhabitants of the United States shall have _liberty_ to take fish of
every kind on such part of the coast of Newfoundland as British fishermen
shall use, (but not to dry or cure the same on that island) and also on
the coasts, bays, and creeks of all other of _her Britannic Majesty's
dominions_ in America; and that the American fishermen shall have
_liberty_ to dry and cure fish in any of the unsettled bays, harbors, and
creeks of Nova Scotia, Magdalen Islands, and Labrador, _so long as the
same shall remain unsettled_; but so soon as the same, or either of them,
shall be settled, it shall not be lawful for the said fishermen to dry or
cure fish _at such settlements_ without a previous agreement for that
purpose with the inhabitants, proprietors, or possessors of the ground."

That the grant of this liberty to American fishermen to take fish on
portions of the coast of his Britannic Majesty's dominions, and to dry and
cure their fish unconditionally on certain districts not yet settled,
subject however to conditions when such districts should become settled,
was a provision of a distinct character from the recognition of their
right to fish in certain seas and gulfs hitherto open to both parties--was
to be presumed both from the terms of the provisions being distinct from
each other, and from the nature of the things themselves, as the liberties
were to be enjoyed within his Britannic Majesty's dominions, the right was
to be exercised in the seas and gulfs, over which his Britannic Majesty
claimed no exclusive sovereignty.

The principle established by these two cases seems to be this,--that
where a convention in its terms contemplates a permanent arrangement of
territorial or other national right, the continuance of which would not be
inconsistent with a state of war, it will not expire with the commencement
of hostilities, though its operation may in certain cases be suspended
till the return of peace.

Hence indeed, conventions, by which a right is recognised, are no sooner
executed than they are completed and perfected. If they are valid, they
have in their own nature a perpetual and irrevocable effect. To use the
words of Vattel, "As soon as a right is transferred by lawful convention,
it no longer belongs to the state that has ceded it: the affair is
concluded and terminated."

To the same effect Judge Kent, the Blackstone of the United States, in his
Commentaries upon American law, (vol. i., p. 177,) adopts almost word for
word the judgment of the Supreme Court:--"Where treaties contemplate a
permanent arrangement of national rights, or which by their terms are
meant to provide for the event of an intervening war, it would be against
every principle of just interpretation to hold them extinguished by the
event of war. They revive at peace, unless waived, or new and repugnant
stipulations be made."

Discussions, however, and disputes have not unfrequently arisen as to the
character of certain conventions, from the circumstance that on occasions
where rights have been recognised, liberties or favors have been conceded
in other articles of the same agreement.

To this effect Martens (§ 58) observes, "Cette distinction entre les
conventions transitoires et les traités serait encore plus importante, si
nombre des traités, et nommément les traités de paix, n'étaient pas
composés d'articles de l'un et de l'autre genre, [mixtes,] ce qui met dela
difficulté dans l'application des principes énoncés."

A striking illustration of this observation of M. Martens may be found in
the discussions which took place between the governments of the United
States and Great Britain in respect to the fisheries on the Banks of
Newfoundland, after the Treaty of Ghent.

By the first article of the treaty signed at Paris in 1783, between Great
Britain and the United States of America, his Britannic Majesty had
acknowledged the said United States [fourteen in number as specified] to
be free, sovereign, and independent states.

This article then contained _the recognition of a right once and for all_;
and as the main and principal object of the treaty was the recognition of
the independence of the United States, this treaty may justly be classed
amongst transitory conventions, which are completed and perfected as soon
as executed.

Another question, however, might obviously be raised in case of a
war,--whether the words of the article created what Martens designates
"une servitude de droit public," and what Mr. Wheaton speaks of as "a
permanent servitude in favor of one nation within the territory of
another," which from the nature of the thing would be suspended during the
war, but would revive on the restoration of peace, or whether they merely
conceded a favor, the duration of which would be subject to the
continuance of peaceful relations between the two states, so that the
obligation would cease with the breaking out of war.

In the negotiations which took place in 1818 between the two governments
[British and Foreign State Papers, 1819-20,] Mr. Adams, on the part of the
United States, contended that the treaty of 1783 was not one of those,
"which, by the common understanding and usage of civilized nations, is or
can be considered as annulled by a subsequent war between the same
parties. To suppose that it is, would imply the inconsistency and
absurdity of a sovereign and independent state liable to forfeit its right
of sovereignty, by the act of exercising it in a declaration of war. But
the very words of the treaty attest, that the sovereignty and independence
of the United States were not considered or understood as grants from his
Majesty. They were taken and expressed as existing before the treaty was
made, and as then only first formally recognized and acknowledged by Great
Britain.

"Precisely of the same nature were the rights and liberties in the
fisheries to which I now refer. They were in no respect grants from the
King of Great Britain to the United States; but the acknowledgment of
them, as rights and liberties enjoyed before the separation of the two
countries, which it was mutually agreed should continue to be enjoyed
under the new relations which were to subsist between them, constituted
the essence of the article concerning the fisheries. The very peculiarity
of the stipulation is an evidence that it was not, on either side,
understood or intended as a grant from one sovereign state to another. Had
it been so understood, neither could the United States have claimed, nor
would Great Britain have granted gratuitously, any such concession. There
was nothing either in the state of things or in the disposition of the
parties which could have led to such a stipulation, as on the ground of a
grant, without an equivalent by Great Britain."

Lord Bathurst's letter of October 30, 1815, to Mr. Adams, contains a full
exposition of the doctrine maintained by Great Britain. It is worthy of
perusal in full, but, as its great length precludes its insertion on the
present occasion, the passages have been selected which bear most closely
on the question.

"The Minister of the United States appears, by his letter, to be well
aware that Great Britain has always considered the liberty formerly
enjoyed by the United States, of fishing within British limits, and using
British territories, as derived from the third article of the Treaty of
1783, and from that alone; and that the claim of an independent state to
occupy and use, at its discretion, any portion of the territory of
another, without compensation or corresponding indulgence, cannot rest on
any other foundation than conventional stipulation. It is unnecessary to
enquire into the motives which might have originally influenced Great
Britain in conceding such liberties to the United States; or whether other
articles of the treaty wherein these liberties are specified, did, or did
not, in fact afford an equivalent for them; because all stipulations
profess to be founded on equivalent advantages and mutual convenience. If
the United States derived from that treaty privileges from which other
independent nations, not admitted by treaty, were excluded, the duration
of the privileges must depend on the duration of the instrument by which
they were granted; and, if the war abrogated the treaty, it determined the
privileges. It has been urged, indeed, on the part of the United States,
that the treaty of 1783 was of a peculiar character; and that, because it
contained a recognition of American independence, it could not be
abrogated by a subsequent war between the parties. To a position of this
novel nature, Great Britain cannot accede. She knows of no exception to
the rule, that all treaties are put an end to by a subsequent war between
the same parties; she cannot, therefore, consent to give to her diplomatic
relations with one state, a different degree of permanency from that on
which her connection with all other states depends. Nor can she consider
any one state at liberty to assign to a treaty made with her, such a
peculiarity of character as shall make it, as to duration, an exception to
all other treaties, in order to found, on a peculiarity thus assumed, an
irrevocable title to indulgences, which have all the features of temporary
concessions."

       *       *       *       *       *

"_It is by no means unusual for treaties containing recognitions and
acknowledgments of title, in the nature of perpetual obligation, to
contain, likewise, grants of privileges liable to revocation._ The Treaty
of 1783, like many others, contained provisions of different characters,
some in their own nature irrevocable, and others of a temporary nature. If
it be thence inferred, that, because some advantages specified in a treaty
could not be put an end to by the war, therefore all the other advantages
were intended to be equally permanent, it must first be shown that the
advantages themselves are of the same, or, at least, of a similar
character: for the character of one advantage recognised or conceded by
treaty, can have no connection with the character of another, though
conceded by the same instrument, unless it arises out of a strict and
necessary connection between the advantages themselves. But what necessary
connection can there be between a right to independence, and a liberty to
fish within British jurisdiction, or to use British territory? Liberties
within British limits are as capable of being exercised by a dependent, as
an independent state, and cannot therefore be the necessary consequences
of independence.

"The independence of a state is that which cannot be correctly said to be
granted by a treaty but to be acknowledged by one. In the Treaty of 1783,
the independence of the United States was certainly acknowledged; but it
had been before acknowledged, not merely by the consent to make the
treaty, but by the previous consent to enter into the provisional articles
executed November, 1782. The independence might have been acknowledged,
without either the treaty or the provisional articles; but by whatever
mode acknowledged the acknowledgment is, in its own nature, irrevocable. A
power of revoking, or even modifying it, would be destructive of the thing
itself; and, therefore, all such power is necessarily renounced, when the
acknowledgment is made. The war could not put an end to it, for the reason
justly assigned by the American Minister, because a nation cannot forfeit
its sovereignty by the act of exercising it; and for the further reason
that Great Britain, when she declared war on her part against the United
States, gave them by that very act a new recognition of their
independence.

"The nature of the liberty to fish within British limits, or to use
British territory, is essentially different from the right to
independence, in all that may reasonably be supposed to regard its
intended duration. The grant of this liberty has all the aspect of a
policy temporary and experimental, depending upon the use that might be
made of it, on the condition of the islands and places where it was to be
exercised, and the more general conveniences or inconveniences, in a
military, naval, or commercial point of view, resulting from the access of
an independent nation to such islands and places. When, therefore, Great
Britain, admitting the independence of the United States, denies their
rights to the liberties for which they now contend, it is not that she
selects from the treaty articles or parts of articles, and says, at her
own will, This stipulation is liable to forfeiture by war, and that is
irrevocable; but the principle of her reasoning is, that such distinctions
arise out of the provisions themselves, and are founded on the very nature
of the grants. But the rights acknowledged by the treaty of 1783 are not
only distinguishable from the liberties conceded by the same treaty in the
foundation upon which they stand, but they are carefully distinguished in
the treaty of 1783 itself.

"The undersigned begs to call the attention of the American minister to
the wording of the 1st and 2nd articles, to which he has often referred
for the foundation of his arguments. In the 1st article, Great Britain
acknowledges an independence already expressly recognised by other powers
of Europe, and by herself, in her consent to enter into provisional
articles, of Nov. 1782. In the 3rd article Great Britain acknowledges the
_right_ of the United States to take fish on the banks of Newfoundland,
and other places, from which Great Britain had no right to exclude any
independent nation. But they are to have the _liberty_ to take fish on the
coasts of his Majesty's dominions in America, and _liberty_ to cure and
dry them in certain unsettled places within his Majesty's territory. If
these liberties, thus granted, were to be as perpetual and indefeasible as
the rights previously recognized, it is difficult to conceive that the
plenipotentiaries of the United States would have admitted a variation of
language so adapted to produce a different impression, and above all,
that they should have admitted so strange a restriction of a perpetual and
indefeasible right, as that with which the article concludes, which leaves
a right, so practical and so beneficial as this is admitted to be,
dependent on the will of British subjects, in their character of
inhabitants, proprietors, or possessors of the soil, to prohibit its
exercise altogether.

"It is clearly obvious that the word _right_ is, throughout the treaty,
used as applicable to what the United States were to enjoy in virtue of a
recognized independence, and the word _liberty_ to what they were to
enjoy, as concessions strictly dependent on the treaty itself."

Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 1816, having
explicitly "disavowed every pretence of claiming for the diplomatic
relations between the United States and Great Britain a degree of
permanency different from that of the same relations between either of the
parties and all other powers," goes on to state, "The undersigned believes
that there are many exceptions to the rule by which treaties between
nations are mutually considered as terminated by the intervention of war;
that these exceptions extend to the engagements contracted, with the
understanding that they are to operate equally in war and peace, or
exclusively during war: to all engagements by which the parties superadd
the sanction of a formal compact to principles dictated by the eternal
laws of morality and humanity; and finally to all engagements which,
according to the expression of Lord Bathurst's note, are in the nature of
a perpetual obligation. To the first and second of these classes may be
referred the 10th article of the treaty of 1794, and all treaties or
articles of treaties stipulating the abolition of the slave-trade. The
treaty of peace of 1783 belongs to the third."

"The reasoning of Lord Bathurst's note seems to confine this perpetuity of
obligation to recognitions and acknowledgments of title; and to consider
its perpetual nature as resulting from the subject matter of the contract,
and not from the engagement of the contractor. Whilst Great Britain leaves
the United States unmolested in the enjoyment of all the advantages,
rights, and liberties, stipulated in their behalf in the Treaty of 1783,
it is immaterial to them whether she founds her conduct upon the mere fact
that the United States are in possession of such rights, or whether she is
governed by good faith and respect for her own engagements. But if she
contests any one of them, it is to her engagements only that the United
States can appeal as to the rule for settling the question of right. If
this appeal be rejected, it ceases to be a discussion of right, and this
observation applies as strongly to the recognition of independence, and to
the boundary line, in the Treaty of 1783, as to the fisheries. It is truly
observed by Lord Bathurst, that in that treaty the independence of the
United States was not granted, but acknowledged. He adds, that it might
have been acknowledged without any treaty, and that the acknowledgment, in
whatever mode made, would have been irrevocable. But the independence of
the United States was precisely the question upon which a previous war
between them and Great Britain had been waged. Other nations might
acknowledge their independence without a treaty, because they had no
right, or claim of right, to contest it: but this acknowledgment, to be
binding upon Great Britain, could have been made only by treaty, because
it included the dissolution of one social compact between the parties, as
well as the formation of another. Peace could exist between the two
nations only by the mutual pledge of faith to the new social relations
established between them, and hence it was that the stipulations of that
treaty were in the nature of perpetual obligation, and not liable to be
forfeited by a subsequent war, or by any declaration of the will of either
party without the assent of the other."

Mr. Adams then proceeds to discuss the variation in the employment of the
terms _right_ and _liberty_, considering the former to import an advantage
to be enjoyed in a place of common jurisdiction, the latter to refer to
the same advantage, incidentally leading to the borders of a special
jurisdiction. That the term _right_ was used as applicable to what the
United States were to enjoy in virtue of a recognised independence, and
the word _liberty_ to what they were to enjoy as concessions strictly
dependent on the treaty itself, he declined to admit, as a construction
altogether unfounded.

He further contended, that "the restriction at the close of the article
was itself a confirmation of the permanency of every part of the article,"
for that, "upon the common and equitable rule of construction for
treaties, the expression of one restriction implies the exclusion of all
others not expressed; and thus the very limitation, which looks forward to
the time when the unsettled deserts should become inhabited, to modify the
enjoyment of the same liberty, conformably to the change of
circumstances, corroborates the conclusion that the whole purport of the
compact was permanent and not temporary."

The documents from which these extracts have been made will well repay a
perusal of them in full, both from the importance of the principles which
are therein discussed, and from the ability with which the discussion was
conducted on both sides. The result of the negotiations was the conclusion
of the convention of October 20, 1818, by which the liberty to take and
cure fish on certain parts of the British American coasts, so long as they
remained unsettled was secured to the citizens of the United States, in
common with British subjects "_for ever_."

It appears to have been admitted by both parties to this negotiation, that
treaties do sometimes contain acknowledgments in the nature of a perpetual
obligation: the point at issue between them seems to have been, whether
the provisions of a convention could ever be considered as of a mixed
character, some of which would be terminable by war, whilst others were
irrevocable; and whether the nature of the thing acknowledged determined
the character of the provision, or the engagement of a treaty gave
permanence to the obligation. It seems to have been implied by the
insertion of the words "for ever," in the first article of the Convention
of 1818, that if the permanent character of the thing recognised is not
beyond dispute, the words of the convention must be express, in order to
give to the engagements of it the nature of a perpetual obligation. On the
other hand, both parties admitted that recognitions of territorial title
were of perpetual obligation; they differed as to the grounds: the British
commissioner deriving the obligation from the nature of the thing
recognised, the plenipotentiary of the United States from the fact of its
having been recognised by a convention.




CHAPTER XI.

NEGOTIATION BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1818.

    Treaty of Ghent, 1814.--Negotiations respecting the Restoration of
    Fort George.--The United States replaced in Possession of the Post at
    the Mouth of the Columbia River.--General Negotiations in London, in
    1818.--Proposal on the Part of the United States.--Convention of
    1818.--No exclusive Claim on either Side.--Western Boundary of the
    United States by the Treaty of 1783.--Treaty of 1794.--Sources of the
    Mississippi in 47° 38'.--Convention of 1803, respecting the Boundary,
    not ratified.--President Jefferson's Letter.--Cession of Louisiana to
    the United States.--Convention of 1806.--First Allusion to the Country
    west of the Rocky Mountains.--Convention not ratified by the United
    States.--Boundary Line according to the Treaty of Utrecht.--Opinion of
    Mr. Greenhow.--Anderson's History of Commerce.--Treaty of
    Ryswick.--Limits of Canada, as surrendered to Great
    Britain.--Difficulty of Boundary Treaties from incorrect Maps.--Treaty
    of 1783.


The Treaty of Ghent, between Great Britain and the United States of
America, was signed on the 24th of December 1814, and it was agreed in the
first article, "that all territory, places, and possessions whatsoever
taken by either party from the other during the war, or which may be taken
after the signing of this treaty, excepting only the islands hereinafter
mentioned [in the bay of Passamaquoddy,] shall be restored without delay."
By virtue of this article, Mr. Monroe, the Secretary of State at
Washington, wrote to Mr. Baker, the British chargé d'affaires, on July 18,
1815, to inform him that measures would be taken by the United States to
occupy without delay the post on the Columbia river, which a British
expedition had succeeded in taking possession of during the war, as not
being within the exception stipulated. [British and Foreign State Papers,
1821-22, p. 459.] To this communication an indecisive reply was made by
Mr. Baker, and the affair was allowed to rest till 1817, when it appears
that the United States despatched the Ontario sloop of war to resume
possession of this post, without giving previous notice to Mr. Bagot, the
British minister at Washington. This led to an inquiry on the part of Mr.
Bagot, relative to the destination of the Ontario, and the object of her
voyage, and to a statement from him, that "the post in question had not
been captured during the late war, but that the Americans had retired from
it under an agreement made with the North-west Company, who had purchased
their effects, and who had ever since retained peaceable possession of the
coast." He further observed, that no claim for the restitution of this
post could be grounded upon the first article of the Treaty of Ghent, and
that "the territory itself was early taken possession of in his Majesty's
name, and has been since considered as forming a part of his Majesty's
dominions."

The discussion was soon afterwards transferred to London, when, in
February 1818, Lord Castlereagh intimated his regret that no notice of the
expedition of the Ontario should have been given to the British minister
at Washington, Great Britain having a claim of dominion over the territory
in question. It was the desire, however, he said, of the British
Government, that the claim of title to this post should go before
commissioners for arbitration. Mr. Rush, the Minister of the United
States, was authorised to state that the omission to give notice of the
Ontario's departure to Mr. Bagot, was entirely owing to the accident of
the President being absent from the seat of government, but that it had
been concluded from Mr. Baker's communications that no authorised English
establishment existed at the place, and "as they intimated no question
whatever of the title of the United States to the settlement, which
existed there before the late war, it did not occur that any such question
had since arisen, which could make it an object of interest to Great
Britain."

Mr. Adams, in the course of his subsequent instructions to Mr. Rush, in
his letter of May 20, 1818, sets forth very clearly and fully the
pretensions of the United States. "As it was not anticipated that any
disposition existed in the British government to start questions of title
with us on the borders of the South Sea, we could have no possible motive
for reserve or concealment with regard to the expedition of the Ontario.
In suggesting these ideas to Lord Castlereagh, rather in conversation than
in any formal manner, it may be proper to remark the minuteness of the
present interests, either to Great Britain or to the United States,
involved in this concern; and the unwillingness, for that reason, of this
Government, to include it among the objects of serious discussion with
them. At the same time you might give him to understand, though not unless
in a manner to avoid every thing offensive in the suggestion, that from
the nature of things, if in the course of future events it should ever
become an object of serious importance to the United States, it can
scarcely be supposed that Great Britain would find it useful or advisable
to resist their claim to possession by systematic opposition. If the
United States leave her in undisturbed enjoyment of all her holds upon
Europe, Asia, and Africa, with all her actual possessions in this
hemisphere, we may very fairly expect, that she will not think it
inconsistent with a very wise or friendly policy, to watch with eyes of
jealousy and alarm every possibility of extension to our natural dominion
in North America, which she can have no solid interest to prevent, until
all possibility of her preventing it shall have vanished." (State Papers,
1821-22, p. 464.)

Lord Castlereagh in the mean time had admitted to Mr. Rush, that in
accordance with the principle of _statu quo_, which was the basis of the
Treaty of Ghent, the United States had a right to be reinstated _and to be
the party in possession whilst treating of the title_. In accordance with
this view, orders were transmitted to the agents of the North-west Company
at Fort George, and to the commodore of the British naval forces in the
Pacific, expressly in conformity to the first article of the Treaty of
Ghent, to restore to the government of the United States, through its
agent, Mr. Prevost, the settlement of Fort George on the Columbia river. A
formal surrender of the post was, in consequence, made and accepted on the
6th of October, 1818; but the North-west Company were still allowed to
occupy it under the flag of the United States, pending the final decision
of the right of sovereignty between the respective governments.

Great Britain, in admitting the right of the United States to be the party
in possession of Fort George pending the discussion of the title to it,
attached the most liberal interpretation to the Treaty of Ghent, and
certainly gave to the United States, in all future discussions, the
advantage of the presumption of law, on the ground of possession, as
against Great Britain:--"Commodum possidentis in eo est, quod etiamsi ejus
res non sit, qui possidet, si modo actor non potuerit suam esse probare,
remanet in suo loco possessio." But, beyond this, nothing was conceded.
Doubtless, in order to oust the United States, it would now be necessary
for Great Britain to make out a perfect and exclusive title, which she
does not attempt to set up, but the re-occupation of the post by the
officers of the United States, expressly in conformity to the Treaty of
Ghent, established nothing further than the fact that they were in the
possession of it before the war broke out.

In the mean time negotiations were being carried on in London for the
settlement of various points at issue between the two
governments--including the fisheries; the boundary line from the Lake of
the Woods westwards; the settlement at the Columbia river; the
indemnification for slaves carried off from the United States; and the
renewal of a treaty of commerce. It would appear from a letter addressed
by Messrs. Gallatin and Rush to Mr. Adams, in October 20, 1818, that in
the course of the above negotiations the British commissioners were
altogether unwilling to agree to a boundary line, unless some arrangement
was made with respect to the country westward of the Stony Mountains.
"This induced us to propose an extension of the boundary line [as drawn
along the 49th degree of north latitude, from the Lake of the Woods to the
Stony Mountains,] due west to the Pacific Ocean. _We did not assert that
the United States had a perfect right to that country, but insisted that
their claim was at least good against Great Britain._ The 49th degree of
north latitude had, in pursuance of the Treaty of Utrecht, been fixed
indefinitely as the line between the northern British possessions and
those of France, including Louisiana, now a part of our territories. There
was no reason why, if the two countries extended their claims westward,
the same line should not be continued to the Pacific Ocean. So far as
discovery gave a claim, ours to the whole country on the waters of the
Columbia River, was indisputable. It had derived its name from that of the
American ship, commanded by Captain Gray, who had first discovered and
entered its mouth. It was first explored from its sources to the ocean by
Lewis and Clarke, and before the British traders from Canada had reached
any of its waters; for it was now ascertained that the river
Tacoutche-Tesse, discovered by Mackenzie, and which he had mistaken for
the Columbia, was not a branch of that river, but fell into the sound
called 'the Gulf of Georgia.' The settlement at the place called Astoria,
was also the first permanent establishment made in that quarter. The
British plenipotentiaries asserted that former voyages, and principally
that of Captain Cook, gave to Great Britain the rights derived from
discovery, and they alluded to purchases from the natives south of the
River Columbia, which they alleged to have been made prior to the American
Revolution. They did not make any formal proposition for a boundary, but
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 at the mouth of the river, in common with the United States."
[State Papers, 1819-20, p. 169.]

These negotiations were brought to a close by the Convention of October
20, 1818, in which, however, nothing definitive was concluded in regard to
the settlement on the Columbia river. By the third article it is agreed,
that "any such country as may be claimed by either party on the northwest
coast of America, on the continent of America westward of the Stony
Mountains, shall, together with its harbours, bays, and creeks, and the
navigation of all rivers within the same, be free and open, for the term
of ten years from the date and signature of this treaty, 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 high contracting parties may have to any part of the
last-mentioned 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 two high contracting parties in that respect being to prevent disputes
and differences amongst themselves." [Martens' Nouveau Recueil de Traités,
iv., p. 575.]

Thus much, however, may be considered to have been definitively recognized
by the article just cited, that both parties had claims to territory west
of the Stony Mountains, but not exclusive claims; it being implied, by the
provision that the agreement should not be taken to affect the claims of
any other Power or State to any part of the said country, that other
Powers might likewise have claims.

By the previous article of this treaty, the object of the framers of the
second article of the Treaty of 1783 was at last accomplished. By that
article it had been agreed, that the western boundary of the United States
should be defined by a line "drawn from the most north-western point of
the Lake of the Woods on a due west course to the River Mississippi;
thence by a line to be drawn along the middle of the said River
Mississippi, until it shall intersect the northernmost part of the
thirty-first degree of north latitude." At the time, then, when Gray
crossed the bar of the Columbia river in 1792, and first entered the
estuary of that river, there was no question about any title of the United
States to territories west of the River Mississippi. The boundaries were
the Atlantic Ocean on the east, and the River Mississippi on the west.

The framers, however, of the second article of the Treaty of 1783, were
ignorant of the true position of the sources of the Mississippi. It was in
consequence stipulated by the fourth article of the subsequent Treaty of
1794, that a "joint survey of the river from one degree below the falls of
St. Anthony, to the principal source or sources of the said river, and of
the parts adjacent thereto," should be made; and if, on the result of the
survey, it should appear that the river could not be intersected by the
above-mentioned line, the parties were to regulate the boundary line by
amicable negotiation, according to justice and mutual convenience, and in
conformity to the intent of the Treaty of 1783. This joint survey never
took effect. In 1798, however, Mr. Thomson, the astronomer of the
North-west Company determined the latitude of the sources of the
Mississippi to be in 47° 38', and thus it was definitively ascertained,
that no line could be drawn due west from the north-western point of the
Lake of the Woods, which is in latitude 49° 37', so as to meet the
head-waters of the Mississippi. In consequence, by a convention signed on
the 12th of May 1803, by Mr. Rufus King and Lord Hawkesbury, it was agreed
that the boundary should be a line from the north-west corner of the Lake
of the Woods by the shortest line, till it touched the River Mississippi
[British and Foreign State Papers, 1819-20, p. 158.] It is to this treaty
that President Jefferson alludes in his letter of August 1803, referred to
by Mr. Pakenham, in his letter of September 12, 1844:--"The boundaries [of
Louisiana] which I deem not admitting question, are the high lands on the
western side of the Mississippi, inclosing all its waters, [the Missouri
of course,] and terminating in the line drawn from the north-west point of
the Lake of the Woods to the nearest source of the Mississippi, _as lately
settled_ between Great Britain and the United States." This treaty,
however, was never ratified, most probably in consequence of the cession
of Louisiana to the United States, by the treaty signed at Paris on the
30th April, 1803; as this cession gave to the United States the title
which France had re-acquired from Spain, by the treaty of St. Ildefonso in
1800, to the western bank of the Mississippi. In consequence, we find that
in a convention concluded at London between Messrs. Monroe and Pinckney,
and the Lords Holland and Auckland, in 1806, it was agreed by the fifth
article, "that a line drawn due north or south [as the case may require,]
from the most north-western point of the Lake of the Woods, until it shall
intersect the 49th parallel of north latitude, and from the point of such
intersection due west, along and with the said parallel, shall be the
dividing line between his Majesty's territories and those of the United
States, to the westward of the said lake, as far as their said respective
territories extend in that quarter; and that the said line shall, to that
extent, form the southern boundaries of his Majesty's said territories,
and the northern boundary of the said territories of the United States;
provided that nothing in the present article shall be construed to extend
to the north-west coast of America or to the territories belonging to or
claimed by either party on the continent of America to the westward of the
Stony Mountains." (Martens' Recueil des Traités, viii., p. 594.)

This was the first notice of any claim on the part of the United States to
territory west of the Rocky Mountains: it may be presumed that the
acquisition of the western bank of the Mississippi formed the ostensible
basis of her claim, as on that ground the expedition of Lewis and Clarke
had been despatched in the preceding year to follow up the Missouri to its
source, and thence to trace down to the Pacific Ocean the most direct and
practicable water-communication for the purposes of commerce. It may be
observed, that the arrangement contemplated by this fifth article was
highly favourable to the United States, as their acquired title to
Louisiana would not strictly have entitled them to any territory north of
the Mississippi. This convention, however was never ratified by the United
States, on account of the absence of any provisions to restrain the
impressment of British sailors serving on board of American ships.
(Schoell, Histoire des Traités de Paix, ch. 40.)

Mr. Greenhow, (p. 281,) in alluding to the negotiations antecedent to this
convention, states that Mr. Monroe, on the part of the United States,
proposed to Lord Harrowby the 49th parallel of latitude, upon the grounds
that this parallel had been adopted and definitively settled, by
commissaries appointed agreeably to the tenth article of the treaty
concluded at Utrecht in 1713, as the dividing line between the French
possessions of Western Canada and Louisiana on the south, and the British
territories of Hudson's Bay on the north; and that this treaty, having
been specially confirmed in the Treaty of 1763, by which Canada and the
part of Louisiana east of the Mississippi and Iberville were ceded to
Great Britain, the remainder of Louisiana continued as before, bounded on
the north by the 49th parallel. The same fact was alleged by the
commissioners of the United States, in their negotiations with Spain in
1805, respecting the western boundary of Louisiana. (British and Foreign
State Papers, 1817-18, p. 322.)

He further goes on to state, that there is every reason to believe, that
though commissioners were appointed, in accordance with the treaty, for
the purpose of determining the boundaries between the French and British
possessions, they never executed their task, and that no line was ever
definitely adopted by the two Governments.

This opinion of Mr. Greenhow seems to be fully supported by the proofs and
illustrations annexed in his Appendix, but his mode of stating the
substance of the tenth article of the Treaty of Utrecht is calculated to
mislead his readers into supposing, that the northern boundary of
Louisiana was under discussion when that article was signed. On the
contrary, the words of the article were as follow:--"But it is agreed on
both sides, to determine within a year, by commissaries to be forthwith
named by each party, the limits which are to be fixed between the said Bay
of Hudson and _the places appertaining to the French_; which limits both
the British and French subjects shall be wholly forbid to pass over, or
thereby go to each other by sea or by land. The same commissaries shall
also have orders to describe and settle in like manner the boundaries
between the _other_ British and French colonies in those parts."

On this article Mr. Anderson, in his History of Commerce, published in
1801, vol. iii., p. 50, observes, under the events of the year
1713:--"Although the French King yielded to the Queen of Great Britain, to
be possessed by her in full right for ever, the Bay and Straits of Hudson,
and all parts thereof, and within the same, then possessed by France; yet
the leaving the _boundaries between Hudson's Bay and the north parts of
Canada, belonging to France_, to be determined by commissaries within a
year, was, in effect, the same thing as giving up the point altogether, it
being well known to all Europe, that France never permits her commissaries
to determine matters referred to such, unless it can be done with great
advantage to her. _Those boundaries_ therefore _have never yet been
settled_, although both British and French subjects are by that article
expressly debarred from passing over the same, or merely to go to each
other by sea or land."

The object of the tenth article of the Treaty of Utrecht was to secure to
the Hudson's Bay Company the restoration of the forts and other
possessions of which they had been deprived at various times by French
expeditions from Canada, and of which some had been yielded to France by
the seventh article of the Treaty of Ryswick. By this latter treaty Louis
XIV. had at last recognised William III. as King of Great Britain and
Ireland, and William in return had consented that the principle of _ubi
possidetis_ should be the basis of the negotiations between the two
crowns. By the tenth article, however, of the Treaty of Utrecht, the
French King agreed to restore to the Queen (Anne) of Great Britain, "to be
possessed in full right for ever, the Bay and Straits of Hudson, together
with all lands, seas, sea coasts, rivers and places situate in the said
bay and straits, and which belong thereto, no tracts of land or sea being
excepted, which are at present possessed by the subjects of France." The
only question therefore for commissaries to settle, were the limits of the
Bay and Straits of Hudson, _coastwards_, on the side of the French
province of Canada, as all the country drained by streams entering into
the Bay and Straits of Hudson were by the terms of the treaty recognised
to be part of the possessions of Great Britain.

If the coast boundary, therefore, was once understood by the parties, the
head waters of the streams that empty themselves into the Bay and Straits
of Hudson indicate the line which at once satisfied the other conditions
of the treaty. Such a line, if commenced at the eastern extremity of the
Straits of Hudson, would have swept along, through the sources of the
streams flowing into the Lake Mistassinnie and Abbitibis, the Rainy Lake,
in 48° 30', which empties itself by the Rainy River into the Lake of the
Woods, the Red Lake, and Lake Travers. This last lake would have been the
extreme southern limit, in about 45° 40', whence the line would have
wound upward to the north-west, pursuing a serpentine course, and resting
with its extremity upon the Rocky Mountains, at the southernmost source of
the Saskatchawan River, in about the 48th parallel of latitude. Such would
have been the boundary line between the French possessions and the
Hudson's Bay district; and so we find that, in the limits of Canada,
assigned by the Marquis de Vaudreuil himself, when he surrendered the
province to Sir J. Amherst, the Red Lake is the apex of the province of
Canada, or the point of departure from which, on the one side, the line is
drawn to Lake Superior; on the other "follows a serpentine course
southward to the river Ouabache, or Wabash, and along it to the junction
with the Ohio." This fact was insisted upon by the British Government in
their answer to the ultimatum of France, sent in on the 1st of September,
1761; and the map, which was presented on that occasion by Mr. Stanley,
the British minister, embodying those limits, was assented to in the
French Memorial of the 9th of September. (Historical Memorial of the
Negotiations of France and England from March 26th to September 20th,
1761. Published at Paris, by authority.) By the fourth article, however,
of the Treaty of 1763, Canada was ceded in full, with its dependencies,
_including the Illinois_; and the future line of demarcation between the
territories of their Britannic and Christian Majesties, on the continent
of America, was, by the seventh article, irrevocably fixed to be drawn
through the middle of the River Mississippi, _from its source_ to the
river Iberville, and thence along the middle of the latter river and the
Lakes Maurepas and Pontchartrain to the sea. Thenceforward the French
territory in North America was confined to the western bank of the
Mississippi, and this was _the Louisiana_ which was ceded by France to
Spain in 1769, by virtue of the treaty secretly concluded in 1762, but not
promulgated till 1765. There would have been no mistake as to the
boundaries of Louisiana, Canada, and the Hudson's Bay territories, as long
as they were defined to be the aggregate of the valleys watered by the
rivers flowing into the Gulf of Mexico, the Gulf of St. Lawrence, and the
Bay of Hudson respectively. The difficulty in executing the provisions of
boundary treaties in America, has arisen chiefly from adopting the data
which incorrect maps have furnished, to which there has been nothing in
nature corresponding, and from agreeing to certain parallels of latitude,
as appearing from those maps to form good natural frontiers, but which
have been found upon actual survey to frustrate the intentions of both
parties.

The relative positions of the Lake of the Woods, the Red Lake, and the
northernmost source of the Mississippi, were evidently not understood by
the parties to the 2d article of the Treaty of 1783, when it was proposed
to continue a line from the northwestern point of Lake Superior through
the Long Lake, and thence to the Lake of the Woods, and due west to the
Mississippi. In order to hit off the sources of the Mississippi, which was
the undoubted purport of the treaty, the line should have been drawn from
the westernmost point of Lake Superior up the river St. Louis, and thence
it might have been carried due westward to the source of the Mississippi
in 47° 38'. No definite substitute was proposed in the Treaty of 1794,
which admitted the uncertain character of the proposed frontier; for even
then the country had not been surveyed, and as neither of the conventions
of 1803 nor 1806 was ratified by the United States, nor could the
respective plenipotentiaries come to any agreement on the subject at the
negotiation of the Peace at Ghent, the question remained unsettled, until
it was at last arranged by the provisions of the 2d article of the
Convention of 1818, that the boundary line agreed upon in 1806 should be
the frontier westward as far the Rocky Mountains.

If this view be correct of the boundary line of the Hudson's Bay
territory, as settled by the Treaty of Utrecht, and of the western limit
of Canada, as expressed upon its surrender to Great Britain, it will be
conclusive against the opinion that the French possessions ever extended
indefinitely northwestward along the continent of North America.

It should be kept in mind, that the Treaty of Utrecht was signed in the
interval between the grant to Crozat in 1712 and the charter of Law's
Mississippi Company in 1717. By the former grant Louisiana had been
definitely limited to the head-waters of the Mississippi and the Missouri,
and before the subsequent annexation of the Illinois to the province of
Louisiana in 1717, all the territory watered by the streams emptying
themselves into the Bay of Hudson had been acknowledged by France to be
part of the possessions of the Crown of England. As then the Hudson's Bay
territories were implied by that treaty to extend up to the Red Lake and
Lake Travers, this would definitely bar the French title further north;
but the declaration of the French authorities themselves, on the surrender
of Canada, that its boundary rested upon the Red Lake, will still more
decisively negative the assertion that Louisiana, after 1717, extended "to
the most northern limit of the French possessions in North America, and
thereby west of Canada and New France," unless it can be shown that the
Illinois country extended to the west of the Red Lake, which was not the
fact. This question, however, will be more fully discussed in the next
chapter.




CHAPTER XII.

ON THE LIMITS OF LOUISIANA.

    Hernando de Soto discovers the Mississippi, in 1542.--British
    Discoveries in 1654 and 1670.--French Expeditions.--De la Salle, in
    1682.--Settlement in the Bay of St. Bernard, in 1685.--D'Iberville, in
    1698.--Charter of Louis XIV. to Crozat, in 1712.--The Illinois
    annexed, in 1717, in the Grant to Law's Mississippi Company.--The
    Treaty of Paris, in 1763.--Secret Treaty between France and
    Spain.--Louisiana ceded to Spain, in 1769.--Retroceded to France, in
    1800, by the secret Treaty of San Ildefonso.--Transferred by Purchase
    to the United States, in 1803.--Discussions with Spain as to the
    Boundaries of Louisiana.--Grants by Charter only valid against other
    Nations upon Principles recognised by the Law of Nations.--Western
    Boundaries of Louisiana.--Evidence of Charters against the
    Grantors.--Conflict of Titles between France and England on the Ohio,
    between France and Spain on the Missouri.--Title of Great Britain by
    Treaties.--Extent of New France westwardly.--Escarbot's Histoire de la
    Nouvelle France.--Map of 1757.--Jefferys' History of the French
    Dominions in America.--Questionable Authority of Maps.


The Spaniards are entitled to claim for their countryman Hernando de Soto
and his followers the merit of having first discovered the River
Mississippi. About the same time that Vasquez de Coronado was despatched
to explore the district which is supposed to correspond to the modern
province of Sonora, in search of the great city of Cibola and the rich
country of Quivira, the Viceroy Mendoza granted a commission to Soto for
the discovery of Florida, which at that time was the general name for the
countries on the northern shores of the Gulf of Mexico. According to the
Spanish accounts, Soto and his followers succeeded, in 1542, in marching
across the continent from Apalache, to the great river (Mississippi,) and
thence penetrated as far west as the Rio Negro. Soto himself, however,
died at Guachoya, and his companions, having committed the body of their
leader in a hollow tree to the river, descended the Mississippi in boats,
and after a series of conflicts with the natives, succeeded in reaching
the Mexican Gulf, under the guidance of Luis de Moscoso and Juan de
Añasco. Thence they continued their voyage westward along the coast until
they arrived at Panuco, which was the northernmost part of New Spain,
being within a few miles of the sea, a little higher up the river than the
modern Tampico. (Herrera, Decade iv., ch. vii. and x., British and Foreign
State Papers, 1817-18, p. 427.)

The Spaniards, however, do not appear to have availed themselves of this
discovery of the mouth of the Mississippi for the purpose of settlement.
On the other hand, the northern branches of the river appear to have been
first explored by subjects of other powers than Spain, in the latter
portion of the seventeenth century. Mr. Greenhow (p. 277) has inserted an
extract from Jefferys' History of the French Dominions in America,
published in 1754, to the effect that "the Mississippi, the chief of all
the rivers of Louisiana, which it divides almost into two equal parts, was
discovered by Colonel Wood, who spent almost ten years, or from 1654 to
1664, in searching its source, as also by Captain Bolt, in 1670." No
further particulars are given by Jefferys, but it may be observed that
both the above persons were British subjects.

In the year 1678, the French Government determined upon an expedition to
explore the western parts of New France, and to discover, if possible, a
road to penetrate to the Spanish possessions in Mexico. In consequence,
Louis XIV. issued letters patent to the Sieur de la Salle, to authorise
him to execute this enterprise, which he commenced towards the end of the
following year. It was not, however, till February 1682, that he reached
the river Colbert or Mississippi, by following the course of the Illinois
River. His voyage down the Mississippi was accomplished by the 7th of
April following, and on the 9th, La Salle took formal possession, in the
name of the French monarch, "of the country of Louisiana, from the mouth
of the great river St. Louis, otherwise called Ohio, on the eastern side,
and also above the River Colbert or Mississippi, and the rivers which
discharge themselves into it, from its source in the country of the Kious
or Nadiouessious, as far as its mouth at the sea, or Gulf of Mexico;" and
"upon the assurance which they had received from all the natives through
whose country they had passed, that they were the first Europeans who had
descended or ascended the said river Colbert, they hereby protested
against all those who may in future undertake to invade any or all of
these countries, people, or lands above described, to the prejudice of the
right of his Majesty, acquired by the consent of the nations herein
named."

The proces-verbal drawn up on this occasion, of which the above is an
extract, which is preserved in the archives of the Department of the
Marine at Paris, was first published by Mr. Jared Sparks of Boston, the
well-known author of the Life of Washington, and may be found most readily
in Mr. Falconer's able treatise on the discovery of the Mississippi. La
Salle, on his return to France, obtained authority to form a colony near
the mouth of the Mississippi, but in his voyage outwards he miscalculated
his course, and reached the coast far to the westward of that river. Here
indeed, in 1685, he established a settlement in the Bay of St. Bernard,
called by him the Bay of St. Louis, which is supposed by some to have been
Matagorda Bay, by others to have been the Bay of Espiritu Santo. This
colony met with great disasters; but the French Government did not abandon
its object, and in 1698 we find that the illustrious Canadian d'Iberville
entered the Mississippi, and established a settlement at about one hundred
leagues from its mouth. Before 1710, many French settlements had been made
on the banks of the great river, but it was not until 1712 that a royal
charter was granted by the French King to Antoine Crozat, which is the
earliest document relied upon to establish the limits of Louisiana, and
which Mr. Greenhow has inserted in his work, (p. 277.)

"Nous avons par ces présentes, signés de notre main, établi, et
établissons ledit Sieur Crozat, pour faire seul le commerce dans toutes
les terres par nous possédées, et bornées par le Nouveau Mexique, et par
celles des Anglais de la Caroline, tous les établissemens, forts, havres,
rivières, et principalement le port et havre de l'isle Dauphine, appellée
autrefois de Massacre, le fleuve St. Louis, autrefois appellée
Mississippy, depuis le bord de la mer jusqu'aux Illinois, ensemble les
rivières St. Philippe, autrefois appellée des Missourys, et St. Hierosme,
autrefois appellée Ouabache, avec tous les pays, contrées, lacs dans les
terres, et les rivières qui tombent directement ou indirectement dans
cette partie du fleuve St. Louis. Voulons que les dites terres, contrées,
fleuves, rivières et isles, soient et demeurent compris sous le nom du
gouvernement de la Louisiane, qui sera dependant du gouvernement général
de la Nouvelle France, auquel il demeurera subordonné; et voulons en outre
que _toutes les terres que nous possédons, depuis les Illinois, soient
réunis_, en tant que besoin est, _au gouvernement général de la Nouvelle
France_, et en fassent partie: nous reservant néanmoins d'augmenter, si
nous le jugeons à-propos, l'étendue du gouvernement du _dit pays de
Louisiane_."

Louisiana, it will be thus seen, according to this authoritative document
of the French crown, was the country watered by the Mississippi, and its
tributary streams from the sea-shore to the Illinois: such was the
limitation affixed to the province by the French themselves; and, by the
same public instrument, all the rest of the French possessions were united
under the government of New France. It is true that the Illinois was
subsequently annexed to Louisiana by a royal decree in 1717, after Crozat
had relinquished his charter, and the whole region was granted to Law's
Mississippi Company; but the Illinois were still spoken of as the
Illinois, and the district was not merged in Louisiana, though it was
annexed to that province, to give the company access to Canada, in which
the monopoly of the beaver-trade had been granted to them. It has been
already observed, that the limits of the Hudson's Bay territories and
French Canada were settled by the peace of Utrecht, in 1713: one great
object of that treaty was to provide against the commercial disputes of
the subjects of the two crowns, which had led to a series of conflicts on
the shores of Hudson's Bay; it was in furtherance of this object that the
fur-trade of Canada was now diverted from the St. Lawrence to the
Mississippi, by this grant of the monopoly of the beaver-trade to the
Compagnie d'Occident, and the annexation of the Illinois country to
Louisiana.

Upon the surrender of Canada to the British arms, considerable discussion
arose as to the respective limits of the provinces of Canada and
Louisiana. The British Government insisted, as already stated, p. 150, on
a line which would take in the river Ouabache, as far as its junction with
the Ohio; and from thence along the Ohio to the Mississippi, the country
to the south of the Ohio being at this time either British possessions, as
part of Virginia, or occupied by Indian tribes. In the course of these
negotiations, the Marquis de Vaudreuil, who signed the surrender,
published his own account of what passed between Sir J. Amherst and
himself, of which he considered the English account to be incorrect. "On
the officer showing me a map which he had in his hand, I told him the
limits were not just, and verbally mentioned others, extending Louisiana
on one side to the carrying-place of the Miamis, _which is the height of
the lands whose rivers run in the Ouabache_; and on the other to _the head
of the river of the Illinois_." [Annual Register, 1761, p. 268.] Even
thus, then, all to the north of the Illinois was admitted to be Canada.
However, the French Government, in its memorial of the 9th September,
1761, "agreed to cede Canada in the most ample manner, and to admit the
line on which England rested her demand, as, without doubt, the most
extensive bound which can be given to the cession." In accordance with
this we find that, by the seventh article of the Treaty of Paris, the
French possessions were declared to be thenceforth limited by the
mid-channel of the Mississippi, from its source to the River Iberville.

The Treaty of Paris, however, has not furnished the only occasion upon
which intricate discussions have arisen respecting the limits of
Louisiana. By a secret treaty with Spain, made in 1762, but not signed
till 1764, France ceded to her all the country known under the name of
Louisiana. This transfer, however, was not promulgated till 1765, two
years after the Treaty of Paris had been signed by France, Spain, and
Great Britain; nor did the Spaniards obtain possession of the country till
1769. From that time Spain retained it till 1800, when she retroceded it
to France by the secret Treaty of San Ildefonso, in exchange for an
augmentation of the territories of the Duke of Parma in Italy. France,
having thus been reinstated in possession of her ancient province, found
she had unexpectedly given alarm and umbrage to the United States of
America, and, in order to detach them from their disposition to unite with
Great Britain, ceded it in full to the United States, in 1803, for the sum
of sixty thousand francs. This led to a protracted negotiation between the
United States and Spain, as to the limits of Louisiana, on the side both
of Florida and Mexico respectively; which, though commenced in 1805, was
not concluded till 1818. The claims of the two states are discussed in
full, in a correspondence which may be found in the British and Foreign
State Papers for 1817-18, and 1819-20.

The United States, in the course of these discussions, insisted upon the
limits marked out in the letters patent which Louis XIV. had granted to
Crozat, _on the authority of the discovery made, and of the possession
taken_, by Father Hennepin in 1680, and by La Salle in 1682. Thus the
validity of the title conveyed by the letters patent was sought to be
grounded by the United States upon principles recognised by the law of
nations. Charters, by their own intrinsic force, can only bind those who
are subject to the authority from which they emanate: against the subjects
of other states they can only avail on the supposition that the title of
the grantor is valid by the law of nations. Thus the charter given by
Charles II. to the Hudson's Bay Company, granted to them, _by virtue of
the discoveries_ made in those parts, all the lands, &c., within the
entrance of the straits commonly called Hudson's Straits, "which _are not
now actually possessed_ by any of our subjects, or _by the subjects of any
other Christian Prince or State_;" and thus we find in the negotiations
antecedent to the Treaty of Utrecht, it was expressly urged in support of
the British title to the territories of Hudson's Bay, "that Mons.
Frontenac, then Governor of Canada, did not complain of any pretended
injury done to France by the said Company's settling a trade and building
of forts at the bottom of Hudson's Bay, nor made pretensions to any right
of France to that bay, till long after that time." [Anderson's History of
Commerce, A. D. 1670, vol. ii., p. 516.] In other words, the title which
this charter created was good against other subjects of the British Crown,
by virtue of the charter itself; but its validity against other nations
rested on the principle that the country was discovered by British
subjects, and, at the time of their settlement, was not occupied by the
subjects of any other Christian prince or state; and in respect to any
special claim on the part of France, the non-interference of the French
governor was successfully urged against that Power as conclusive of her
acquiescence.

That the province of Louisiana did not at any time extend _further north_
than the source of the Mississippi, either if we regard the evidence of
public instruments in the form of charters and treaties, or of historical
facts, is most assuredly beyond the reach of argument. What, however, were
the _western_ limits of the province, has not been so authoritatively
determined. Mr. Greenhow, (p. 283,) after examining this question,
concludes thus:--"In the absence of more direct light on the subject from
history, we are forced to regard the boundaries indicated by
nature--namely, the highlands separating the waters of the Mississippi
from those flowing into the Pacific or Californian gulf--as the _true
western boundaries_ of the Louisiana ceded by France to Spain in 1762, and
retroceded to France in 1800, and transferred to the United States by
France in 1803: but then it must also be admitted, for the same as well as
for another and stronger reason, that the British possessions further
north were bounded on the coast by the same chain of highlands; for the
charter of the Hudson's Bay Company, on which the right to those
possessions was founded and maintained, expressly included only the
countries traversed by the streams emptying themselves into Hudson's Bay."

Charters may certainly be appealed to as evidence against the parties
which have granted them, that on their own admission they do not extend
their claim beyond the limits of them, and Mr. Greenhow is perfectly
justified in confining the limits of Rupert's Land, for such seems to have
been the name recognised in the charter, to the plantation in Hudson's
Bay, and the countries traversed by the streams emptying themselves into
the Bay; but the right to those possessions, as against France, was not
founded upon the charter, but generally upon recognised principles of
international law, and especially upon the Treaty of Utrecht. So in
respect to the northern limit of Louisiana, Crozat's grant, or the grant
to Law's Mississippi Company, might be alleged against France, to show
that its limits did not extend further north, on the right bank of the
Mississippi, than the Illinois. On the other hand, the Treaty of Paris
might be appealed to, in order to show against Great Britain, that it did
extend on the right bank of the Mississippi as far north as the sources of
that river. Again, in respect to the western boundary of Louisiana,
Crozat's grant might be cited against France, to show that the province of
Louisiana did not extend further westward than the confines of New Mexico.
What, however, was the boundary of New Mexico, does not seem to have been
determined by any treaty between France and Spain. France seems, indeed,
from the words of Crozat's grant, to have considered herself exclusively
entitled to the Missouri river on the right bank, and to the Ohio on the
left. The claims, however, of Great Britain, clashed with her on the banks
of the Ohio, as remarked by Mr. Calhoun in his letter to Mr. Packenham of
Sept. 3, 1844. In an analogous manner the Spanish title conflicted with
the French title on the banks of the Missouri; for we find that, in the
negotiations antecedent to the Treaty of Washington, in 1819, the Spanish
commissioner maintained, that after Santa Fé, the capital of New Mexico,
was built, Spain considered all the territory lying to the east and north
of New Mexico, so far as the Mississippi and Missouri, to be her property.
[British and Foreign State Papers, 1817-18, p. 438.] The United States,
indeed, on succeeding to the French title, declined to admit that the
Spanish frontier ever extended so far to the north-east as was alleged; on
the other hand, the letter of President Jefferson, of August 1803, shows
that they considered their own claims to be limited by "the high lands on
the western side of the Mississippi, enclosing all its waters, [the
Missouri of course."]

By the Treaty of Utrecht, the British possessions to the north-west of
Canada were acknowledged to extend to the head-waters of the rivers
emptying themselves into the bay of Hudson: by the Treaty of Paris, they
were united to the British possessions on the Atlantic by the cession of
Canada and all her dependencies; and France contracted her dominions
within the right bank of the Mississippi. That France did not retain any
territory after this treaty to the north-west of the sources of the
Mississippi, will be obvious, when it is kept in mind that the sources of
the Mississippi are in 47° 35', whilst the sources of the Red River, which
flows through Lake Winnipeg, and ultimately finds its way by the Nelson
River into the bay of Hudson, are in Lake Travers, in about 45° 40'.

Some writers are disposed to consider that the limits of New France
extended westwardly across the entire continent to the Pacific Ocean, but
no authoritative document has been cited to show that the French Crown
ever claimed such an extent of unknown territory, or that its claim was
ever admitted. Escarbot's description, in 1617, of New France, which,
however, is of no authority, embraces within its limits almost the entire
continent of North America, as may be seen from the extract from his
"Histoire de la Nouvelle France," which M. Duflot de Mofras gives: "Ainsi
nostre Nouvelle France a pour limites du côté d'ouest les terres jusqu'à
la mer dite Pacifique en deça du tropique du Cancer; au midi, les côtes de
la mer Atlantique du côté de Cube et de l'Isle Hespagnole; au levant, la
mer du Nord qui baigne la Nouvelle France; et au septentrion, cette terre
qui est dite inconnue, vers la mer glacée jusqu'au pole arctique."

The same author cites a map of the year 1757, as confirmatory of this
view, in which a great river is exhibited in 45°, on the north-west coast
of America, the direction of which is exactly that of the Columbia; but
Mr. Greenhow, in the new edition of his work, p. 159, states, that this
map was drawn and presented by the French commissaries appointed under the
Treaty of Aix-la-Chapelle in 1748, to expose the extravagant pretensions
of the British in North America, and that it does not contain the word
_Canada_, or _Nouvelle France_, or any other sign of French dominion, the
whole division of the continent, between 48° and 31° north latitude, being
represented by strong lines and express notes, as included in the limits
of the British provinces; nor does it show any large river falling into
the Pacific north of the peninsula of California, nor any river entering
that ocean north of 36°. A map perhaps better authenticated than this may
be referred to in the History of the French Dominions in America, by
Jefferys, the geographer to the King of England, in 1760, which does not,
indeed, extend New France to the Pacific: on the contrary, whilst it
exhibits the River of the West flowing in a course not unlike that of the
Columbia, it does not include the Pacific Ocean at all in its limits, but
leaves the west coast of the continent in its real obscurity.

Maps, however, are but pictorial representations of supposed territorial
limits, the evidence of which must be sought for elsewhere. There may be
cases, it is true, where maps may be evidence; when, for instance, it has
been specially provided that a particular map, such as Melish's Map of
North America, shall be the basis of a convention: but it is to be
regretted that maps of unsurveyed districts should ever have been
introduced into diplomatic discussions, where limits conformable to
convenient physical outlines, such as headlands or water-courses, are
really sought for, and are understood to be the subject of negotiation.
The pictorial features of a country, which, in such cases, have been
frequently assumed as the basis of the negotiation, have not unusually
caused greater embarrassment to both the parties in the subsequent attempt
to reconcile them with the natural features, than the original question in
dispute, to which they were supposed to have furnished a solution. That
the name of Nouvelle France should have been applied by French authors and
in French maps to the country as far as the shores of the Pacific Ocean,
was as much to be expected as that the name of California should have been
extended by the Spaniards to the entire north-west coast of America, which
we know to have been the fact, from the negotiations in the Nootka Sound
controversy.




CHAPTER XIII.

TREATY OF WASHINGTON.

    The Treaty of San Ildefonso.--Ineffectual Negotiations between Spain
    and the United States, in 1805, respecting the Boundary of
    Louisiana.--Resumed in 1817.--M. Kerlet's Memoir cited by Spain,
    Crozat's Charter by the United States, as Evidence.--Spain proposes
    the Missouri as the mutual Boundary.--The United States propose to
    cross the Rocky Mountains, and draw the Line from the Snow Mountains
    along 41° to the Pacific.--Negotiations broken off.--Spain proposes
    the Columbia River as the Frontier.--Offers the Parallel of 41° to the
    Multnomah, and along that River to the Sea.--Error in Melish's
    Map.--The United States propose the Parallel of 41° to the
    Pacific.--Spain proposes the Parallel of 42° to the Multnomah, and
    along that River to 43°, thence to the Pacific.--The 42° Parallel
    adopted.--Source of the Multnomah or Willamette River, in about
    44°.--Wilkes' exploring Expedition--Third Article of the Treaty.--The
    asserted Rights of Spain to the Californias.--Her Title by
    Discovery.--The United States decline to discuss them.--The asserted
    Rights of the United States to the Valley of the Mississippi.--Mr.
    Greenhow's Remarks.--The Spanish Commissioner declines to
    negotiate.--Design of the President of the United States.--Question of
    Rights abandoned.--Object of the Spanish Concessions.--Santa
    Fé.--Ultimate Agreement.--Review of the Claims of the two
    Parties.--Principles of international Law advanced by the United
    States.--Possession of the Sea-coast entitles to Possession of the
    interior Country.--Vattel.--Inconsistency of the Diplomatists of the
    United States.--Treaty of Paris.--Natural Boundary of conterminous
    Settlements, the Mid-distance.--Vattel.--Wheaton.--Acquisition of
    Title from Natives barred by first Settlers against other European
    Powers.--Right of Pre-emption.


In the same year in which the Convention of 1818 was concluded at London
between the United States and Great Britain, negotiations were being
carried on at Washington between Spain and the United States, with the
view of determining the effects of the Treaty of 1803, whereby Louisiana
had been ceded by France to the latter power. It had been stipulated in
the treaty of San Ildefonso in 1800, that Spain should retrocede "the
colony or province of Louisiana, with the same extent which it now has in
the hands of Spain, and which it had when France possessed it, and such as
it ought to be according to the treaties subsequently made between Spain
and other powers." (British and Foreign State Papers, 1817-18, p. 267-9.)
The Treaty of 1803 in its turn ceded Louisiana to the United States, "in
the name of the French republic, for ever and in full sovereignty, with
all its rights and appurtenances, as fully and in the same manner as they
have been acquired by the French republic, in virtue of the
above-mentioned treaty with his Catholic Majesty." It thus became
requisite to determine the limits of this new acquisition of the United
States, both on the side of the Floridas, and on that of New Spain. An
examination of the discussion regarding the eastern boundary towards the
Floridas is unnecessary on the present occasion. The question respecting
the western limit was, perhaps, the more difficult to settle, from the
circumstance that Texas was claimed by Spain as a province of New Spain,
whilst the United States insisted that it was a portion of Louisiana:
whilst Spain contended that she had only ceded the _Spanish province_ of
Louisiana, the United States maintained that she had retroceded the
_French colony_. Spain thereupon proposed a line which, "beginning at the
Gulf of Mexico between the River Carecut or Cascasiu, and the Armenta or
Marmentoa, should go to the north, passing between Adaes and Natchitoches,
until it cuts the Red River," on the ground that the Arroyo-Hondo, which
is midway between Natchitoches and Adaes, had been, in fact, considered to
be the boundary in 1763. The United States on the other hand, insisted on
the Rio Bravo del Norte as the western frontier, on the ground that the
settlement of La Salle in the Bay of St. Bernard (Matagorda) carried with
it a right to the territory as far as the Rio Bravo. Beyond the Red River
Spain proposed that the boundary should be determined by commissioners,
after a survey of the territory, then but little known, and a reference to
documents and dates, "which might furnish the necessary light to both
governments upon limits which had never been fixed or determined with
exactness." (State Papers, 1817-18, p. 321.) Such was the proposal made by
Don Pedro Cevallos on the part of Spain, on April 9th, 1805. Messrs.
Pinckney and Moore, in reply, proposed a compromise in connection with the
western frontier, that a line along the River Colorado, from its mouth to
its source, and from thence to the northern limits of Louisiana, should be
the boundary; but the Spanish government declined to accept their
proposal, and the negotiations were not resumed till the year 1817.

Spain had, in the mean time, during the captivity of the Spanish monarch
in France, been unexpectedly deprived of the greater part of West
Florida, in 1810, by the United States, without any declaration of war, or
stipulation of peace, which could seem to authorise it. On re-opening the
negotiation in 1817, the Spanish Government, having waived all demands on
this head, proposed to cede the two Floridas to the United States in
exchange for the territory which lies between the River Mississippi and
the well-known limit which now separates, and has separated Louisiana,
when France possessed it, before the year 1764, and even before the death
of King Charles II. of Spain, from the Spanish province of Texas: so that
the Mississippi might be the only boundary of the dominions of his
Catholic Majesty and of those of the United States. (State Papers,
1817-1818, p. 356.)

In the course of the subsequent negotiations, the Spanish commissioner,
Don Luis de Onis, in a letter of the 12th of March 1818, refused to admit
the authority of the grant of Louis XIV. to Crozat as evidence of the
limits of Louisiana, and referred to the memoir drawn up by M. Kerlet, for
many years governor of the province before it was ceded to Spain by the
Treaty of 1763, containing a description of its proper extent and limits.
This memoir had been delivered by the Duc de Choiseul, minister of France,
to the Spanish ambassador at Paris, as a supplement to the Act of Cession
of Louisiana. (State Papers, 1817-18, p. 437.) On the other hand, the
Secretary of State, on the part of the United States, maintained that "the
only boundaries ever acknowledged by France, before the cession to Spain
in Nov. 3, 1762, were those marked out in the grant from Louis XIV. to
Crozat." She always claimed the territory which Spain called Texas, as
being within the limits, and forming part of Louisiana, "which in that
grant is declared to be bounded westward by New Mexico, eastward by
Carolina, and extending inward to the Illinois, and to the sources of the
Mississippi, and of its principal branches." (State Papers, 1817-18, p.
470.)

These discussions were suspended for a short time, in consequence of
difficulties between the two governments respecting the Seminole Indians
in Florida; but on the 24th of October Don Luis d'Onis proposed, that "to
avoid all causes of dispute in future, the limits of the respective
possessions of both governments to the west of the Mississippi shall be
designated by a line beginning on the Gulf of Mexico, between the rivers
Marmentoa and Cascasiu, following the Arroyo-Hondo, between Adaes and
Natchitoches, crossing the Rio Roxo, or Red River, at 32° of latitude and
98° of longitude, from London, according to Melish's map, and thence
running directly north, crossing the Arkansas, the White, and the Osage
Rivers, till it strikes the Missouri, and then following the middle of
that river to its source, so that the territory on the right bank of the
said river will belong to Spain, and that on the left bank to the United
States. The navigation of the Mississippi and Marmentoa shall remain free
to the subjects of both parties." (State Papers, 1818-19, p. 276.)

No proposal had as yet been advanced by either party to carry the boundary
line across the Rocky Mountains till October 31, 1818, when Mr. Adams
offered, as the ultimatum of the United States, a "line from the mouth of
the River Sabine, following its course to 32° N. L., thence due north to
the Rio Roxo, or Red River, following the course of that river to its
source, touching the chain of the Snow Mountains in latitude 37° 25'
north, thence to the summit, and following the chain of the same to 41°,
thence following the same parallel to the South Sea." The Spanish
commissioner, in his reply, undertook to admit the River Sabine instead of
the Marmentoa, on condition "that the line proposed by Mr. Adams should
run due north from the point where it crosses the Rio Roxo till it strikes
the Missouri, and thence along the middle of the latter to its source;"
but in regard to the extension of the line beyond the Missouri, _along the
Spanish possessions to the Pacific_, he declared himself to be totally
unprepared by his instructions to discuss such a proposal. The
negotiations were in consequence broken off. Subsequently, the Spanish
commissioner, having received fresh instructions from his government in a
letter of June 16, 1819, proposed to draw the western boundary line
between the United States and the Spanish territories from the source of
the Missouri to the Columbia River, and along the course of the latter to
the Pacific, which Mr. Adams, on the part of the United States, rejected
as inadmissible. Don Luis d'Onis thereupon, having expressly waived all
questions as to the right of either power to the territory in dispute, and
also as to the limits of Louisiana, proposed that the boundary line, as
suggested by Mr. Adams, should follow the Sabine river to its source,
thence by the 94th degree of longitude to the Red River of Natchitoches,
and along the same to the 95th degree; and crossing it at that point,
should run by a line due north to the Arkansas, and along it to its
source, thence by a line due west till it strikes the source of the River
St. Clemente or Multnomah, in latitude 41°, and along that river to the
Pacific Ocean: the whole agreeably to Melish's map. This is another very
remarkable instance of the danger of referring even to the best maps, when
territorial limits are to be regulated by the physical features of a
country. There must have been a monstrous error in Melish's map, which the
Spanish commissioner had before him, if such a line could have been drawn
upon it from the source of the Arkansas _due west_ to the source of the
Multnomah, the modern Willamette River. Mr. Adams, in reply, proposed a
slightly modified line "to the source of the Arkansas in 41°, and thence
due west to the Pacific along the parallel of 41° according to Melish's
map up to 1818; but if the source of the Arkansas should fall south or
north of 41°, then the line should be drawn due north or south from its
source to the 41st parallel, and thence due west to the sea." This would
have been an intelligible line. Don Luis d'Onis then communicated a
project of a further modified line from the 100th parallel of longitude
west of Greenwich along the middle of the Arkansas to the 42d parallel;
"thence a line shall be drawn westward, by the same parallel of latitude,
to the source of the River San Clemente, or Multnomah, following the
course of that river to the 43° of latitude, and thence by a line due west
to the Pacific Ocean." Another counter project was proposed by Mr. Adams
on the 13th of February, and ultimately it was agreed between the parties
to admit the parallel of 42° from the source of the Arkansas westward to
the Pacific Ocean, with the proviso that if the source of the Arkansas
should be north or south of 42°, the line should be drawn from it south or
north to the 42d parallel. It was fortunate that this proviso was adopted,
for actual surveys have since determined the source of the Arkansas to be
at the foot of the Sierra Verde, in about 46° 45' north latitude. On the
other hand, as an illustration of the lamentable want of information on
the part of the Spanish commissioner in respect to the boundary line which
he proposed to be drawn, first of all along the parallel of 41° due west
to the source of the Multnomah, and secondly along the parallel of 42° due
west to the same river, it may be observed, that the source of this river
is ascertained to be very little further south than the 44th parallel of
latitude, as may be seen in the excellent American map attached to
Commander Wilkes' Exploring Expedition, though even so late as in
Mitchell's map for 1834 it is placed in about 42°.

The Treaty of Washington, or the Floridas, was thus at last concluded on
the 22d February, 1819, and by the third article, after specifying the
boundary line, as above described, between the two countries west of the
Mississippi, it concludes thus: "The two high contracting parties agree to
cede and renounce all their rights, claims, and pretensions to the
territories described by the said line; that is to say, the United States
hereby cede to his Catholic Majesty, and renounce for ever, all their
rights, claims, and pretensions to the territories lying west and south of
the above described line; and in like manner his Catholic Majesty cedes to
the United States all his rights, claims, and pretensions to any
territories east and north of the said line, and for himself, his heirs
and successors, renounces all claim to the said territories for ever."
(Martens' Nouveau Recueil des Traités, v., p. 333.)

It will be observed from the words of the above article, that the nature
of the rights reciprocally ceded are in no manner specified. It thus
becomes necessary to look to the antecedent negotiations to determine this
question. In the first communication from the Chevalier d'Onis, on January
5, 1818, in respect to the western boundary of Louisiana, we find him
assert that "the right and dominion of the Crown of Spain to the
north-west coast of America, as high up as the Californias, is not less
certain and indisputable (than her claim to West Florida,) the Spaniards
having explored as far as the 47th degree in the expedition under Juan de
Fuca in 1592, and in that of Admiral Fonte to the 55th degree in 1640.

"The dominion of Spain in these vast regions being thus established, and
her rights of discovery, conquest, and possession, being never disputed,
she could scarcely possess a property founded on more respectable
principles, whether of the law of nations, of public law, or any others
which serve as a basis to such acquisitions as all the independent
kingdoms and states of the earth consist of." (State Papers, 1817-18, p.
427.)

Mr. Adams, in his reply of January 16, 1818, stated that "the President of
the United States considered it would be an unprofitable waste of time to
enter again at large upon topics of controversy, which were at that time
[1805] so thoroughly debated, and upon which he perceives nothing in your
notes, which was not then substantially argued by Don Pedro Cevallos, and
to which every reply essential to elucidate the rights and establish the
pretensions on the part of the United States was then given." Without,
therefore, noticing even in the slightest manner that portion of the
Spanish title now for the first time set out in respect of the
Californias, and which had not in any manner been alluded to in the
previous correspondence, he simply proposed, "the Colorado River from its
mouth to its source, and from thence to the northern limits of Louisiana,
to be the western boundary; or to leave that boundary unsettled for future
arrangement." It may be observed, that the paramount object of the United
States at this moment, was to obtain the cession of the Spanish claims to
territories _eastward_ of the Mississippi. [State Papers, 1817-18, p.
450.] The western frontier was comparatively of less pressing importance.

Various communications having in the mean time been exchanged, Mr. Adams
at last, in his letter of Oct. 31, 1818, proposed for the first time, on
the part of the United States, an extension of the boundary to the Pacific
Ocean, namely, a line drawn due west along the 41st parallel. He did not
attempt, on this occasion, to contest the position which Spain had taken
up in respect to territory west of the Rocky Mountains, but contented
himself with again asserting, that the rights of the United States to the
entire valley of the Mississippi and its confluents were established
beyond the reach of controversy. Mr. Greenhow [p. 316] observes, "On these
positive assertions of the Spanish minister, Mr. J. Q. Adams, the American
plenipotentiary and Secretary of State, did not consider himself required
to make any comment; and the origin, extent, and value of the claims of
Spain to the north-western portion of America, remained unquestioned
during the discussion."

The Spanish commissioner seems to have regarded the silence of Mr. Adams
as a tacit admission that his position was unassailable, and therefore was
totally unprepared for the proposal of the United States, if we may judge
from his reply:--"What you add respecting the extension of the same line
beyond the Missouri, along the Spanish possessions to the Pacific Ocean,
exceeds by its magnitude and its transcendency all former demands and
pretensions stated by the United States. Confining, therefore, myself to
the power granted to me by my sovereign, I am unable to stipulate any
thing on this point." [State Papers, 1818-19, p. 284.]

Mr. Adams, in his reply of Nov. 30, 1818, [ibid. 291,] writes, "As you
have now declared that you are not authorised to agree, either to the
course of the Red River, [Rio Roxo,] for the boundary, nor to the 41st
parallel of latitude, from the Snow Mountains to the Pacific Ocean, the
President deems it useless to pursue any further the attempt at an
adjustment of this object by the present negotiation." Don Luis, in
withdrawing for the present moment from the negotiation, in his letter of
Dec. 12, 1818, [ibid., p. 502,] observes, "I even expressed my earnest
desire to conclude the negotiation, so far as to admit the removal of the
boundary line, from the Gulf of Mexico, on the river Sabine, as proposed
by you; and I only added, that it should run more or less obliquely to the
Missouri, thereby still keeping in view the consideration of conciliating
the wish that your government might have, of retaining such other
settlements as might have been formed on the bank of that river, and
observing, nevertheless, that it was not to pass by New Mexico, or _any
other provinces or dominions of the crown of Spain_."

The Spanish commissioner, after obtaining fresh instructions to authorize
him to extend the boundary line to the Pacific Ocean, stated in a letter
of Jan. 16, 1819, to Mr. Adams, [State Papers, 1819-20, p. 565,] that "his
Majesty will agree that the boundary line between the two states shall
extend from the source of the Missouri, westward to the Columbia River,
and along the middle thereof to the Pacific Ocean;" in the hope that this
basis would be accepted by the President, "as it presents the means of
realizing his great plan of extending a navigation from the Pacific to the
remotest points of the northern states."

This offer was not accepted, and Mr. Adams, in his reply of Jan. 29, 1819,
simply stated, "that the proposal to draw the western boundary line
between the United States and the Spanish territories on this continent,
from the source of the Missouri to the Columbia River, cannot be
admitted," (ibid. p. 566;) and at the same time he renewed his proposal of
the 31st of October last, as to the parallel of 41°.

Don Luis de Onis, as might be expected, did not accede to this, and in his
next letter, of Feb. 1, 1819, writes, "I have proved to you in the most
satisfactory manner, that neither the Red River of Natchitoches, nor the
Columbia, ever formed the boundary of Louisiana; but as you have intimated
to me that it is useless to pursue the discussion any further, I acquiesce
with you therein, and I agree that, keeping out of view the rights which
either party may have to the territory in dispute, we should confine
ourselves to the settlement of those points which may be for the mutual
interest and convenience of both.

"Upon this view, therefore, of the subject, and considering that the
motive for declining to admit my proposal of extending the boundary line
from the Missouri to the Columbia, and along that river to the Pacific,
appears to be the wish of the President to include, within the limits of
the Union, all the branches and rivers emptying into the said River
Columbia, I will adapt my proposals on this point, so as fully to satisfy
the demand of the United States, without losing sight of the essential
object, namely, that the boundary line shall, as far as possible, be
natural and clearly defined, and leave no room for dispute to the
inhabitants on either side."

He therefore proposed, as the Red River rose within a few leagues of Santa
Fé, the capital of New Mexico, to substitute the Arkansas for the Red
River; so that the line along the Red River should not be drawn further
westward than the 95th degree of longitude, and crossing it at that point,
should run "due north to the Arkansas, and along it to its source; thence,
by a line due west, till it strikes the source of the River St. Clemente,
or Multnomah, in latitude 41°, and along that river to the Pacific Ocean.
The whole agreeably to Melish's map."--(State Papers, 1819-20, p. 568.)

Mr. Adams on the other hand, on Feb. 6, 1819, repeated the proposal of the
United States as to the line from the source of the Arkansas River being
drawn along the parallel of 41° N. L. to the Pacific, with other
modifications in the general detail of the boundary.

This proposal, however, was not accepted, and the Spanish commissioner in
his turn, on Feb. 9, proposed a different line, to be drawn "along the
middle of the Arkansas to the 42° of latitude; thence a line shall be
drawn westward by the same parallel of latitude to the source of the River
San Clemente or Multnomah, following the course of that river to the 43°
of latitude, and thence by a line to the Pacific Ocean." (Ibid. p. 570.)

Mr. Adams, in his answer of February 13, 1819, still retained the
parallel of 41° of latitude from the source of the Arkansas to the South
Sea, according to Melish's map. (Ibid. p. 575.)

The Chevalier de Onis, on the 16th of February 1819, ultimately agreed "to
admit the 42° instead of the 43° of latitude from the Arkansas to the
Pacific Ocean." (Ibid. p. 580.)

These extracts from the documentary correspondence preliminary to the
Treaty of 1819, will show the nature of the claims maintained by the two
parties, and thus serve to explain the meaning of the third article of the
treaty. Spain asserted her right and dominion over the northwest coast of
America as high up as the Californias, as based upon the discoveries of
Juan de Fuca in 1592, and Admiral Fonte in 1640. The United States made
_no claim_ to territory west of the Rocky Mountains. On the other hand,
the United States asserted her right over the coasts of the Mexican Gulf
from the Mississippi to the Rio Bravo by virtue of Crozat's grant, and of
the settlement of La Salle in the Bay of St. Bernard, whilst Spain
maintained that the expedition of Hernando de Soto and others entitled her
by discovery to the entire coasts of the Mexican Gulf, and that the crown
of Spain, before 1763, had extended her dominion eastward over the right
side of the Mississippi from its mouth to the mouth of the Missouri, and
northward over the right side of the latter river from its mouth to its
source; in other words, that the dependencies of the Spanish province of
New Mexico extended as far as the Missouri and the Mississippi, and the
Spanish province of Texas as far as the Red River and Mississippi. The
rights, claims, and pretensions, therefore, to any territories lying east
and north of the parallel of 42°, which Spain, by the 3rd article of the
Treaty of 1819, ceded to the United States, had respect to the Spanish
province of Texas, the Spanish province of New Mexico, and the
Californias; the rights, claims, and pretensions which the United States
ceded to his Catholic Majesty to any territories west and south of this
line, had reference to the coasts of the Gulf of Mexico as far the Rio
Bravo, and the inland country; for no claim or pretension had been
advanced by the United States to territory beyond the Rocky Mountains, and
the object of the negotiation was expressly to determine the boundaries of
Louisiana, which the United States insisted had been ceded to them in the
full extent in which it had been possessed by France, according to the
limits marked out by Louis XIV. in his grant to Crozat.

In the course of these negotiations, we find certain principles of
international law laid down by the commissioners of the United States as
applicable to the question of disputed boundaries. They seem to have been
advanced after careful consideration, for Messrs. Pinckney and Monroe
formally enunciated them on the 20th of April 1805, as "dictated by
reason, and adopted in practice by European Powers in the discoveries and
acquisitions which they have respectively made in the new world;" and Mr.
Adams, on the 12th of March 1820, restated them again as principles
"sanctioned alike by immutable justice, and the general practice of the
European nations, which have formed settlements and held possessions in
this hemisphere." (British and Foreign State Papers, 1817-18, pp. 327,
467.)

The _first_ is, "That whenever _any European nation takes possession of
any extent of sea-coast_, that possession is understood as extending into
the interior country, to the sources of the rivers emptying _within that
coast_, to all their branches, and the country they cover, and to give it
a right in exclusion of all other nations to the same."

"It is evident," write Messrs. Pinckney and Monroe, (ibid., p. 327,) "that
some rule or principle must govern the rights of European Powers in regard
to each other in all such cases, and it is certain that none can be
adopted, in those to which it applies, more reasonable or just than the
present one. Many weighty considerations shew the propriety of it. Nature
seems to have destined a range of territory so described for the same
society, to have connected its several parts together by the ties of a
common interest, and to have detached them from others. If this principle
is departed from, it must be by attaching to such discovery and
possession, a more enlarged or contracted scope of acquisition; but a
slight attention to the subject will demonstrate the absurdity of either.
The latter would be to restrict the rights of a European Power, who
discovered and took possession of a new country, to the spot on which its
troops or settlements rested, a doctrine which has been totally disclaimed
by all the Powers who made discoveries and acquired possessions in
America. The other extreme would be equally improper; that is, that the
nation who made such discovery should, in all cases, be entitled to the
whole of the territory so discovered. In the case of an island, whose
extent was seen, which might be soon sailed round, and preserved by a few
forts, it may apply with justice; but in that of a continent it would be
absolutely absurd. Accordingly, we find, that this opposite extreme has
been equally disclaimed and disavowed by the doctrine and practice of
European nations. The great continent of America, north and south, was
never claimed or held by any one European nation, nor was either great
section of it. Their pretensions have been always bounded by more moderate
and rational principles. The one laid down has obtained general assent.

"This principle was completely established in the controversy which
produced the war of 1755. Great Britain contended that she had a right,
_founded on the discovery and possession of such territory_, to define its
boundaries by given latitudes in grants to individuals, retaining the
sovereignty to herself from sea to sea. This pretension on her part was
opposed by France and Spain, and it was finally abandoned by Great Britain
in the treaty of 1763, which established the Mississippi as the western
boundary of her possessions. _It was opposed by France and Spain on the
principle here insisted on, which of course gives it the highest possible
sanction in the present case._"

To a similar purport Vattel, b. i., § 266, writes: "When a nation takes
possession of a country, with a view to settle there, it takes possession
of every thing included in it, as lands, lakes, rivers, &c." It is
universally admitted, that when a nation takes possession of a country,
she is considered to appropriate to herself all its natural appendages,
such as lakes, rivers, &c., and it is perfectly intelligible, why the
practice of European nations has sanctioned the exclusive title of the
first settlers on any extent of sea-coast to the interior country within
the limits of the coast which they have occupied, because their
settlements bar the approach to the interior country, and other nations
can have no right of way across the settlements of independent nations. In
reference, however, to the extent of coast, which a nation may be presumed
to have taken possession of by making a settlement in a vacant country,
the well-known rule of _terræ dominium finitur, ubi finitur armorum vis_,
might on the first thought suggest itself; but it has not been hitherto
held that there is any analogy between jurisdiction over territory, and
jurisdiction over adjoining seas: on the contrary, it was ruled in the
Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1
Paine, 457, "that under the second article of the treaty with Great
Britain, the precincts and jurisdiction of a fort are not to be considered
three miles in every direction, by analogy to the jurisdiction of a
country over that portion of the sea surrounding its coasts, but they must
be made out by proof." The comity of nations, however, has recognised in
the case of settlements made in a vacant territory for the purpose of
colonisation, a title in the settlers to such an extent of territory as it
may fairly be presumed that they intend to cultivate (Vattel, b. i., §
81,) and the possession of which is essential either to the convenience or
security of the settlement, without being inconvenient to other nations.
The limitation of this extent seems rather to have been regulated by
special conventions, than by any rule of uniform practice.

On the authority of this principle as above stated, Messrs. Pinckney and
Monroe contended that "by the discovery and possession of the Mississippi
in its whole length, and _the coast adjoining it_, the United States are
entitled to the whole country dependent on that river, the waters which
empty into it, and their several branches, _within the limits on that
coast_. The extent to which this would go it is not in our power to say;
but the principle being clear, dependent on plain and simple facts, it
would be easy to ascertain it."

It will have been observed, that the opposition of France and Spain to the
pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as
giving the highest sanction to this principle. A passage in Mr. Calhoun's
letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having
alluded to the claims of France and Great Britain, first conflicting on
the banks of the Ohio, he writes: "If the relative strength of these
different claims may be tested by the result of that remarkable contest,
that of continuity westward must be pronounced to be the stronger of the
two. England has had at least the advantage of the result, and would seem
to be foreclosed against contesting the principle--particularly as against
us, who contributed so much to that result, and on whom that contest, and
her example and her pretensions from the first settlement of our country,
have contributed to impress it so deeply and indelibly." In other respects
Mr. Calhoun adopts the same view of the early European settlements in
North America, that the respective nations "claimed for their settlements
usually, specific limits _along the coasts_ or bays on which they were
formed, and generally a region of _corresponding width_ extending across
the entire continent to the Pacific Ocean."

That the hypothesis of Mr. Calhoun's argument was meant to be affirmed,
may be inferred from Mr. Gallatin having categorically asserted the same
fact in 1826, as being notorious. It does not however appear from the
protracted negotiations prior to the Treaty of Paris, that any conflicting
principles of international law were advanced by the two parties, or any
question of disputed title set at rest by the treaty. On the contrary, it
was intimated in the course of the negotiations, by Great Britain, that
she considered France to have the natives on the left bank of the
Mississippi under her protection, when she proposed that the King of
France should "consent to leave them under the protection of Great
Britain."

The _second_ rule is, "that whenever a 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_, where the boundary
between them is not determined by the principle above mentioned, the
middle distance becomes such of course. The justice and propriety of this
rule are too obvious to require illustration."

The principle here stated seems very analogous to that which is recognised
by all writers on international law, as regulating the navigation of
rivers. Thus Vattel (i., § 266)--"When a nation takes possession of a
country bounded by a river, she is considered as appropriating to herself
the river also; for the utility of a river is too great to admit a
supposition that the nation did not intend to reserve it for herself.
Consequently, the nation that first established her dominion on one of the
banks of the river, is considered as being the first possessor of all that
part of the river which bounds her territory. Where there is a question of
a _very broad river_, this presumption admits not of a doubt, so far, at
least, as relates to a part of the river's breadth, and the strength of
the presumption increases or diminishes in the inverse ratio with the
breadth of the river; for the narrower the river is, the more does the
safety and convenience of its use require that it should be subject
entirely to the empire and property of that nation." To make the reasoning
more complete, it might have been added, "the broader the river is, the
stronger claim has each party to a portion of it, as requisite for its
own convenience, and not likely to be attended with inconvenience to the
other party."

Mr. Wheaton states the rule of division more explicitly (part ii., ch.
iv.)--"Where a navigable river forms the boundary of conterminous states,
the middle of the channel, or 'thalweg,' is generally taken as the line of
separation between the two states, the presumption of law being, that the
right of navigation is common to both: but this presumption may be
destroyed by actual proofs of prior occupancy, and long undisturbed
possession giving one of the riparian proprietors the exclusive title to
the entire river."

In an analogous manner, where a large tract of unoccupied land forms the
boundary of conterminous settlements, the middle distance is suggested by
natural equity as the line of demarcation, where such line is not
inconvenient to either party, and when one party cannot establish a
stronger presumption than the other of a perfect right in its own favour.

Thus, Messrs. Pinckney and Monroe contended, that "by the application of
this principle to the discovery made by M. de la Salle of the bay of St.
Bernard, and his establishment there on the western side of the River
Colorado, the United States have a just right to a boundary founded on the
middle distance between that point and the then nearest Spanish
settlement; which, it is understood, was in the province of Panuco, unless
that claim should be precluded on the principle above mentioned. To what
point that would carry us, it is equally out of our power to say; nor is
it material, as the possession in the bay of St. Bernard, taken in
connection with that on the Mississippi, has been always understood, as of
right we presume it ought, to extend to the Rio Bravo, on which we now
insist."

The _third_ rule is, "that whenever any European nation has thus acquired
a right to any portion of territory on that continent, that right can
never be diminished or affected by any other Power, by virtue of purchases
made, by grants, or conquests of the natives within the limits described."

"It is believed," continued the commissioners, "that this principle has
been admitted, and acted on invariably, since the discovery of America, in
respect to their possessions there, by all the European Powers. It is
particularly illustrated by the stipulations of their most important
treaties concerning those possessions, and the practice under them, viz.,
the Treaty of Utrecht in 1713, and that of Paris in 1763."

The practice of European nations has certainly recognised in the nation
which has first occupied the territory of savage tribes, that live by
hunting, fishing, and roaming habits, the sole right of acquiring the soil
from the natives by purchase, or cession, or conquest, for the purpose of
establishing settlements. The more humane spirit of the modern code of
nations seems disposed to reduce this right to a right of _pre-emption_,
as against other European nations.

The applicability of the above principles to the solution of the questions
at present under discussion between the governments of the United States
and Great Britain, will be considered in a subsequent chapter.




CHAPTER XIV.

NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED STATES IN 1823-24.

    Proceedings in Congress after the Convention of 1818.--Russian Ukase
    of 1821.--Russian Title to the North-west Coast of
    America.--Declaration of President Monroe, of Dec. 2, 1823.--Protest
    of Russia and Great Britain.--Report of General Jessup.--Exclusive
    Claim set up by the United States, on the Ground of Discovery by
    Captain Gray, and Settlement at Astoria.--Extent of Title by Discovery
    of the Mouth of a River.--The United States claim up to 51° N.
    L.--British Objections.--Convention of 1790.--Discovery by Captain
    Gray a private Enterprise.--Mr. Rush's Reply.--Gray's Vessel a
    national Ship for such an Occasion.--Superior Title of Spain.--British
    Answer.--Pretensions of Spain never admitted.--Drake's Expedition in
    1578.--Mr. Rush's further Reply.--Treaty of 1763, a Bar to Great
    Britain westward of the Mississippi.--Exclusive Claim of the United
    States to the entire Valley of the Columbia River.--Proposal of the
    British Commissioners of the Parallel of 49° to the North-easternmost
    Branch of the Columbia, and thence along the Mid-channel of the River
    to the Sea.--Counter-proposal of the United States of the Parallel of
    49° to the Sea.--Negotiations broken off.


The Convention of 1818 had provided that the country westward of the Stony
Mountains should be free and open, for the term of ten years from the
signature of the treaty, to the vessels, citizens, and subjects of the two
Powers, without prejudice to the territorial claims of either party. Two
years afterwards a committee was appointed by the House of Representatives
in Congress, for an "inquiry as to the situation of the settlements on the
Pacific Ocean, and as to the expediency of occupying the Columbia River;"
and a bill was subsequently brought in "for the occupation of the
Columbia, and the regulation of the trade with the Indians in the
territories of the United States." The bill, however, was suffered to lie
on the table of the House, and although it was again brought before
Congress in the ensuing year, no further steps were taken until the winter
of 1823. (Greenhow, p. 332.)

In the mean time the attention of both Powers was arrested by the
publication of a Russian ukase on 16th September 1821, by which an
exclusive title was asserted in favour of Russian subjects to the
north-west coast of America, as far south as 51° north lat., and all
foreign vessels were prohibited from approaching within one hundred miles
of the shore, under penalty of confiscation. Great Britain lost no time in
protesting against this edict, and Mr. Adams, on the part of the United
States, declined to recognise its validity. A correspondence ensued
between Mr. Adams and M. de Poletica, the Russian Minister at Washington,
which may be referred to in the British and Foreign State Papers for
1821-22. M. de Poletica alleged, as authorising this edict on the part of
the Emperor, first discovery, first occupancy, and, in the last place, a
peaceable and uncontested possession of more than half a century. Both the
other Powers, however, contested the extent to which so perfect a title
could be made out by Russia, and separate negotiations were in consequence
opened between Russia and the other two Powers for the adjustment of their
conflicting claims. The question was additionally embarrassed by a
declaration on the part of President Monroe, on December 2, 1823, that the
"American continents, by the free and independent condition which they had
assumed, were henceforth not to be considered as subjects for colonisation
by any European power." (Greenhow, p. 325.) Against this declaration, both
Russia and Great Britain formally protested. A further ground of
dissension between Great Britain and the United States resulted from an
official paper laid before the House of Representatives in Congress, on
February 16, 1824, by General Jessup, the Quartermaster-General, in which
it was proposed to establish certain military posts between Council Bluffs
on the Missouri, and the Pacific, by which, he adds, "present protection
would be afforded to our traders; and at the expiration of the privilege
granted to British subjects to trade on the waters of the Columbia, we
should be enabled to remove them from our territory, and to secure the
whole trade to our citizens." In the conference which ensued at London on
the following July, the British commissioners remarked that such
observations "were calculated to put Great Britain especially upon her
guard, coming, as they did, at a moment when a friendly negotiation was
pending between the two Powers for the adjustment of their relative and
conflicting claims to the entire district of the country." (Greenhow, p.
337.)

Such proceedings on the part of the Executive of the United States were
not calculated to facilitate the settlement of the points likely to become
subjects of controversy in the approaching negotiations, either at St.
Petersburgh or at London. The instructions which were to guide the
commissioners of the United States were set forth by Mr. Adams, in a
letter to Mr. Rush, the Minister Plenipotentiary at London, of the date of
July 22, 1823, which may be referred to in the British and Foreign State
Papers, 1825-26, p. 498. In the previous negotiations of 1818, as already
observed, Messrs. Gallatin and Rush "_did not assert a perfect right_" to
the country westward of the Stony Mountains, but insisted that their claim
was "_at least good against Great Britain_." The 49th degree of north
latitude had, in pursuance of the Treaty of Utrecht, been fixed
indefinitely as the line between the northern British possessions and
those of France, including Louisiana, now a part of our territories. There
was no reason why, if the two countries extended their claims westward,
the same line should not be continued to the Pacific Ocean. So far as
discovery gave a claim, ours to the whole country on the waters of the
Columbia River was indisputable. Subsequently, however, to these
negotiations, His Catholic Majesty had ceded to the United States, by the
Treaty of Washington, of February 22, 1819, commonly called the Florida
Treaty, "all his rights, claims, and pretensions to any territory" north
of the 42d parallel of north latitude; and Mr. Rush opened the
negotiations by stating, that "the rights thus acquired from Spain were
regarded by the government of the United States as surpassing the rights
of all other European Powers on that coast." Apart, however, from this
right, "the United States claimed in their own right, and as their
absolute and exclusive sovereignty and dominion, the whole of the country
west of the Rocky Mountains, from the 42d to at least as far up as the
51st degree of north latitude." This claim they rested upon their first
discovery of the river Columbia, followed up by an effective settlement at
its mouth: a settlement which was reduced by the arms of Britain during
the late war, but formally surrendered up to the United States at the
return of peace.

Their right by first discovery they deemed peculiarly strong, having been
made, not only from the sea by Captain Gray, but also from the interior by
Lewis and Clarke, who first discovered its sources, and explored its whole
inland course to the Pacific Ocean. It had been ascertained that the
Columbia extended, by the River Multnomah, to as low as 42 degrees north;
and by Clarke's River, to a point as high up as 51 degrees, if not beyond
that point; and to this entire range of country, contiguous to the
original dominion of the United States, and made a part of it by the
almost intermingling waters of each, the United States considered their
title as established by all the principles that had ever been applied on
this subject by the Powers of Europe to settlements in the American
hemisphere. "I asserted," writes Mr. Rush, "that _a nation discovering a
country, by entering the mouth of its principal river at the sea coast,
must necessarily be allowed to claim and hold as great an extent of the
interior country as was described by the course of such principal river
and its tributary streams_; and that the claim to this extent became
doubly strong, where, as in the present instance, the same river had also
been explored from its very mountain-springs to the sea.

"Such an union of titles, imparting a validity to each other, did not
often exist. I remarked, that it was scarcely to be presumed that any
European nation would henceforth project any colonial establishment on any
part of the north-west coast of America, which as yet had never been used
to any other useful purpose than that of trading with the aboriginal
inhabitants, or fishing in the neighbouring seas; but that the United
States should contemplate, and at one day form, permanent establishments
there, was naturally to be expected, as proximate to their own
possessions, and falling under their immediate jurisdiction. Speaking of
the Powers of Europe, who had ever advanced claims to any part of this
coast, I referred to the principles that had been settled by the Nootka
Sound Convention of 1790, and remarked, that Spain had now lost all the
_exclusive colonial rights that were recognised under that convention_,
first, by the fact of the independence of the South American States and of
Mexico, and next, by her express renunciation of all her rights, of
whatever kind, above the 42 degree of north latitude, to the United
States. Those new States would themselves now possess the rights incident
to their condition of political independence, and the claims of the United
States above the 42 parallel, as high up as 60°, claims as well in their
own right as by their succession to the title of Spain, would henceforth
necessarily preclude other nations from forming colonial establishments
upon any part of the American continents. I was, therefore, instructed to
say, that my government no longer considered any part of those continents
as open to future colonisation by any of the Powers of Europe, and that
this was a principle upon which I should insist in the course of these
negotiations."

The proposal which Mr. Rush was authorised to make on the part of the
United States was, that for the future no settlements should be made by
citizens of the United States north of 51°, or by British subjects south
of 51°, inasmuch as the Columbia River branched as far north as 51°. Mr.
Adams, however, in his instructions, concludes with these words:--"As,
however, the line already runs in latitude 49° to the Stony Mountains,
should it be earnestly insisted upon by Great Britain, we will consent to
carry it in continuance on the same parallel to the sea."

On the other hand the British plenipotentiaries, on their part, totally
declined the proposal, and totally denied the principles under which it
had been introduced. "They said that Great Britain considered the whole of
the unoccupied parts of America as being open to her future settlements,
in like manner as heretofore. They included within these parts, as well
that portion of the north-west coast lying between the 42d and 51st degree
of latitude, as any other parts. The principle of colonisation on that
coast, or elsewhere, on any portion of those continents not yet occupied,
Great Britain was not prepared to relinquish. Neither was she prepared to
accede to the exclusive claim of the United States. She had not, by her
convention with Spain of 1790, or at any other period, conceded to that
Power any exclusive rights on that coast, where actual settlements had not
been formed. She considered the same principles to be applicable to it now
as then. She could not concede to the United States, who held the Spanish
title, claims which she had felt herself obliged to resist when advanced
by Spain, and on her resistance to which the credit of Great Britain had
been thought to depend.

"Nor could Great Britain at all admit, the plenipotentiaries said, the
claim of the United States, as founded on their own first discovery. It
had been objectionable with her in the negotiation of 1818, and had not
been admitted since. Her surrender to the United States of the post at
Columbia River after the late war, was in fulfilment of the provisions of
the first article of the Treaty of Ghent, without affecting questions of
right on either side. Britain did not admit the validity of the discovery
by Captain Gray. He had only been on an enterprise of his own, as an
individual, and the British government was yet to be informed under what
principles or usage, among the nations of Europe, his having first
entered or discovered the mouth of the River Columbia, admitting this to
have been the fact, was to carry after it such a portion of the interior
country as was alleged. Great Britain entered her dissent to such a claim;
and least of all did she admit that the circumstance of a merchant vessel
of the United States having penetrated the coast of that continent at
Columbia River, was to be taken to extend a claim in favour of the United
States along the same coast, both above and below that river, over
latitudes that had been previously discovered and explored by Great
Britain herself, in expeditions fitted out under the authority and with
the resources of the nation. This had been done by Captain Cook, to speak
of no others, whose voyage was at least prior to that of Captain Gray. On
the coast only a few degrees south of the Columbia, Britain had made
purchases of territory from the natives before the United States were an
independent power; and upon that river itself or upon rivers that flowed
into it, west of the Rocky Mountains, her subjects had formed settlements
coeval with, if not prior to, the settlement by American citizens at its
mouth."

Such was the tenor of the opening of the negotiations. Mr. Rush, in
resuming the subject, stated that it "was unknown to his government that
Great Britain had ever even advanced any claim to territory on the
north-west coast of America, by the right of occupation, before the Nootka
Sound controversy. It was clear, that by the Treaty of Paris, of 1763, her
territorial claims to America were bounded westward by the Mississippi.
The claim of the United States, under the _discovery_ by Captain Gray, was
therefore, at all events, sufficient to over-reach, in point of time, any
that Great Britain could allege along that coast, on the ground of _prior
occupation or settlement_. As to any alleged settlements by her subjects
on the Columbia, or on rivers falling into it, earlier, or as early, as
the one formed by American citizens at Astoria, I knew not of them, and
was not prepared to admit the fact. As to the discovery itself of Capt.
Gray, it was not for a moment to be drawn into question. It was a fact
before the whole world. The very geographers of Great Britain had adopted
the name which he had given to this river."

Having alluded to the fact of Vancouver having found Captain Gray there,
Mr. Rush proceeded to meet the objection that the discovery of the
Columbia River was not made by a national ship, or under national
authority. "The United States," he said, "could admit of no such
distinction; could never surrender, under it or upon any ground, their
claim to this discovery. The ship of Captain Gray, whether fitted out by
the government of the United States, or not, was a _national ship_. If she
was not so in a technical sense of the word, she was in the full sense of
it, _applicable to such an occasion_. She bore at her stern the flag of
the nation, sailed forth under the protection of the nation, and was to be
identified with the rights of the nation."

"The extent of this interior country attaching to this discovery was
founded," Mr. Rush contended, "upon a principle at once reasonable and
moderate: reasonable, because, as discovery was not to be limited to the
local spot of a first landing-place, there must be a rule both for
enlarging and circumscribing its range; and none more proper than that of
taking the water-courses which nature has laid down, both as the fair
limits of the country, and as indispensable to its use and value;
moderate, because the nations of Europe had often, under their rights of
discovery, carried their claims much farther. Here I instanced, as
sufficient for my purpose, and pertinent to it, the terms in which many of
the royal charters and letters patent had been granted, by the Crown of
England, to individuals proceeding to the _discovery_ or _settlement_ of
new countries on the American continent. Amongst others, those from
Elizabeth in 1578, to Sir Humphery Gilbert, and in 1584, to Sir Walter
Raleigh: those from James I. to Sir Thomas Yates, in 1606 and 1607, and
the Georgia charter of 1732. By the words of the last, a grant is passed
to all territories along the sea-coast, from the River Savannah to the
most southern stream 'of another great river, called the Alatamaha, and
westward from the heads of the said rivers in a direct line to the South
Seas.' To show that Britain was not the only European nation, who, in her
territorial claims on this continent, had had an eye to the rule of
assuming water-courses to be the fittest boundaries, I also cited the
charter of Louis XIV. to Crozat, by which 'all the country drained by the
waters emptying directly or indirectly into the Mississippi,' is declared
to be comprehended under the name, and within the limits of Louisiana."

In respect to the title derived by the United States from Spain, Mr. Rush
contended that, "if Great Britain had put forth no claims on the
north-west coast, founded _on prior occupation_, still less could she ever
have established any, at any period, founded _on prior discovery_. The
superior title of Spain on this ground, as well as others, was indeed
capable of demonstration." _Russia had acknowledged it in 1790_, as the
State Papers of the Nootka Sound controversy would show. The memorial of
the Spanish Court to the British minister on that occasion expressly
asserted, that notwithstanding all the attempted encroachments upon the
Spanish coasts of the Pacific Ocean, Spain had preserved her possessions
there entire,--possessions which she had constantly, and before all
Europe, on that and other occasions, declared to extend to as high at
least as the 60th degree of north latitude. The very first article of the
Nootka Sound Convention attested, I said, the superiority of her title;
for whilst by it the nations of Europe generally were allowed to make
settlements on that coast, it was only for the purposes of trade with the
natives, thereby excluding the right of any exclusive or colonial
establishments for other purposes. As to any claim on the part of Britain
under the voyage of Captain Cook, I remarked that this was sufficiently
superseded (passing by every thing else) by the Journal of the Spanish
expedition from San Blas in 1775, kept by Don Antonio Maurelle, for an
account of which I referred the British plenipotentiaries to the work of
Daines Barrington, a British author. In that expedition, consisting of a
frigate and a schooner, fitted out by the Viceroy of Mexico, the
north-west coast was visited in latitude 45, 47, 49, 53, 55, 56, 57, and
58 degrees, not one of which points there was good reason for believing
had ever been explored, or as much as seen, up to that day, by any
navigator of Great Britain. There was, too, I said, the voyage of Juan
Perez, prior to 1775; that of Aguilar, in 1601, who explored that coast in
latitude 45°; that of De Fuca in 1592, who explored it in latitude 48°,
_giving the name_, which _they still bore_, to the straits in that
latitude, without going through a much longer list of other early Spanish
navigators in that sea, whose discoveries were confessedly of a nature to
put out of view those of all other nations. I finished by saying, that in
the opinion of my government, the title to the United States to the whole
of that coast, from latitude 42° to as far north as latitude 60°, was
therefore superior to that of Great Britain or any other Power; first,
through the proper claim of the United States by discovery and settlement,
and secondly, as now standing in the place of Spain, and holding in their
hands all her title."

The British plenipotentiaries, in their reply, repeated their animated
denials of the title of the United States, as alleged to have been
acquired by themselves, enlarging and insisting upon their objections to
it, as already stated. Nor were they less decided in their renewed
impeachments of the title of Spain. They said that it was well known to
them what had formerly been the pretensions of Spain to absolute
sovereignty and dominion in the South Seas, and over all the shores of
America which they washed: but that these were pretensions which Britain
had never admitted: on the contrary, had strenuously resisted them. They
referred to the note of the British minister to the Court of Spain, of May
16, 1790, in which Britain had not only asserted a full right to an
uninterrupted commerce and navigation in the Pacific, but also that of
forming, with the consent of the natives, whatever establishments she
thought proper on the north-west coast, in parts not already occupied by
other nations. This had been the doctrine of Great Britain, and from it,
nothing that was due in her estimation to other Powers, now called upon
her in any degree to depart.

As to the alleged prior discoveries of Spain all along that coast, Britain
did not admit them but with great qualification. She could never admit
that the mere fact of Spanish navigators having first seen the coast at
particular points, even where this was capable of being substantiated as
the fact, without any subsequent or efficient acts of sovereignty or
settlement on the part of Spain, was sufficient to exclude all other
nations from that portion of the globe. Besides, they said, even on the
score of prior discovery on that coast, at least as far up as 48° north
latitude, Britain herself had a claim over all other nations. "Here they
referred to Drake's expedition in 1578, who, as they said, explored that
coast on the part of England, from 37° to 48° N., making formal claim to
these limits in the name of Elizabeth, and giving the name of New Albion
to all the country which they comprehended. Was this, they asked, to be
reputed nothing in the comparison of prior discoveries, and did it not
even take in a large part of the very coast now claimed by the United
States, as of prior discovery on their side?"

Mr. Rush in reply contended, "as to Drake, although Fleurieu, in his
introduction to Marchand, did assert that he got as far north as 48°, yet
Hakluyt, who wrote about the time that Drake flourished, informs us that
he got no higher than 43°, having put back at that point from extremity
of cold. All the later authors or compilers, also, who spoke of his
voyage, however they might differ as to the degree of latitude to which he
went, adopted from Hakluyt this fact, of his having turned back from
intensity of weather. The preponderance of probability, therefore, I
alleged, as well as of authority was, that Drake did not get beyond 43°
along that coast. At all events, it was certain that he had made no
settlements there, and the absence of these would, under the doctrine of
great Britain, as applied by her to Spain, prevent any title whatever
attaching to his supposed discoveries. They were moreover put out of view
by the treaty of 1763, by which Great Britain agreed to consider the
Mississippi as the western boundary upon that continent."

He concluded with re-asserting formally, "the full and exclusive
sovereignty of the United States over the whole of the territory beyond
the Rocky Mountains washed by the Columbia River, in manner and extent as
stated, subject, of course, to whatever existing conventional arrangements
they may have formed in regard to it with other Powers. Their title to
this whole country they considered as not to be shaken. It had often been
proclaimed in the legislative discussions of the nation, and was
afterwards public before the world. Its broad and stable foundations were
laid in the first uncontradicted discovery of that river, both at its
mouth and its source, followed up by an effective settlement, and that
settlement the earliest ever made upon its banks. If a title in the United
States, thus transcendant, needed confirmation, it might be sought in
their now uniting to it the title of Spain. It was not the intention of
the United States, I remarked, to repose upon any of the extreme
pretensions of that Power to speculative dominion in those seas, which
grew up in less enlightened ages, however countenanced in those ages; nor
had I, as their plenipotentiary, sought any aid from such pretensions; but
to the extent of the just claims of Spain, grounded upon her fair
enterprise and resources, at periods when her renown for both filled all
Europe, the United States had succeeded, and upon claims of this character
it had, therefore, become as well their right as their duty to insist."

The British plenipotentiaries, in conclusion, with a view as they said of
laying a foundation of harmony between the two governments, proposed that
the third article of the Convention of 1818 should now terminate. That
"the boundary line between the territories respectively claimed by the
two Powers, westward of the Rocky Mountains, should be drawn due west,
along the 49th parallel of latitude, to the point where it strikes the
north-easternmost branch of the Columbia, and thence down along the middle
of the Columbia to the Pacific Ocean: the navigation of this river to be
for ever free to the subjects or citizens of both nations." They remarked,
"that in submitting it, they considered Great Britain as departing largely
from the full extent of her right, and that, if accepted by the United
States, it would impose upon her the necessity of breaking up four or five
settlements, formed by her subjects within the limits that would become
prohibited, and that they had formed, under the belief of their full
rights as British subjects to settle there. But their government was
willing, they said, to make these surrenders, for so they considered them,
in a spirit of compromise, on points where the two nations stood so
divided."

Mr. Rush, in reply, declared his utter inability to accept such a
proposal, and in return consented, "in compliance with this spirit, and in
order to meet Great Britain on ground that might be deemed middle, to vary
so far the terms of his own proposal, as to shift the southern line as low
as 49° in place of 51°." "I desired it," he writes, "to be understood,
that this was the extreme limit to which I was authorised to go; and that,
in being willing to make this change, I, too, considered the United States
as abating their rights, in the hope of being able to put an end to all
conflict of claims between the two nations to the coast and country in
dispute."

The British commissioners declined acceding to this proposal, and as
neither party was disposed to make any modification in their ultimatum,
the negotiation was brought to a close.




CHAPTER XV.

EXAMINATION OF THE CLAIMS OF THE UNITED STATES.

    Exclusive Sovereignty for the first Time claimed by the United States
    over the Valley of the Columbia.--The Statements relied upon to
    support this, not correct.--The Multnomah River erroneously laid down
    in Maps.--Willamette Settlement--Source of the Multnomah, or
    Willamette, in about 43° 45' N. L.--Clarke's River.--Source in 46°
    30'.--The Northernmost Branch of the Columbia discovered and explored
    by Mr. Thomson.--The Pacific Fur Company not authorised by the United
    States Government.--The American Fur Company, chartered by the State
    of New York in 1809, a different Company for a different Purpose.--The
    Association dissolved at Astoria before the Arrival of H. B. M.'s
    Sloop of War the Racoon.--Protection of the National
    Flag.--Vattel.--Kluber.--Letter from Mr. Gallatin to Mr. Astor.--A
    Commission from the State required in respect of acquiring
    Territory.--Title by Discovery of the Mouth of a River.--Rivers
    Appendages to a Territory.--Vattel.--Common Use of great Rivers.--Mr.
    Wheaton.--Effect of the Principle to make the Highlands, not the Water
    Courses, the Boundaries.--Different Principle advanced by Messrs.
    Pickney & Monroe, in 1805, founded on Extent of Sea
    Coast.--Vattel.--Charters of Georgia, Pennsylvania, and
    Carolina.--Crozat's Grant opposed to the Spanish Discovery of the
    Mississippi.--Inconvenience in applying the Principle.--Conflict of
    Titles.--Course of the Columbia River.--Valley of the Columbia River
    does not extend across the Cascade Range, on the North Side of the
    River.--Derivative Title of the United States from Spain.--Spanish
    Version, in 1790, of Encroachments by Russia.--The Russian
    Statement.--The Russian American Company, in 1799--Lord
    Stowell.--Discoveries require Notification.--The Convention of the
    Escurial admitted to contain Recognitions of Rights.--Meaning of the
    Word "Settlements."


It will have been seen in the previous chapter that Messrs. Rush and
Gallatin, in the negotiations of 1823-24, no longer confined themselves to
the assertion of an imperfect right on the part of the United States, good
at least against Great Britain, as in the negotiations of 1818, but set up
a claim on the part of the United States, _in their own right, to absolute
and exclusive sovereignty and dominion_ over the whole of the country
westward of the Rocky Mountains, from 42° to at least as high up as 51°.
This claim they rested upon their first discovery of the River Columbia,
followed up by an effective settlement at its mouth.

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

The American plenipotentiaries grounded the extent of the exclusive claim
of the United States, _in their own right_, upon the fact that "it had
been ascertained that the Columbia extended by the River Multnomah to as
low as 42° north, and by Clarke's River to a point as high up as 51°, if
not beyond that point." In the first place, then, neither of these
statements is correct. The erroneous notions respecting the Multnomah
River have been already alluded to in the chapter upon the Treaty of
Washington. To a similar purport, in the map prefixed to Lewis and
Clarke's Travels, we find the source of the Multnomah laid down in 38° 45'
north latitude, 115° 45' west longitude from Greenwich, the river being
represented to run a due north-west course, and to empty itself into the
Columbia within about 140 miles of the sea. In the narrative of the
expedition, Chapter XX., it is expressly stated, that they passed the
mouth of this river in their way down the Columbia to the Pacific, and
afterwards found it to be the Multnomah; and in Chapter XXV. it is said
that "the Indians call it Multnomah from a nation of the same name,
residing near it, on Wappatoo Island." This Island lies in the immediate
mouth of the river, dividing the channel into two parts. Now this river is
the modern Willamette, which enters the Columbia from the south, about
five miles below Fort Vancouver, about eighty-five miles from the sea,
according to Mr. Dunn, and in the valley of this river, in a very fertile
district, about fifty miles from its entrance into the Columbia, is the
Willamette Settlement, where the majority of the colonists from the United
States are located, though according to Commander Wilkes' account, (vol.
iv., chap. x., p. 349, 8vo. ed.,) many of the farms belong to Canadians
who have been in the service of the Hudson's Bay Company. Actual survey,
as may be seen from Commander Wilkes' map, has determined that the
southernmost source of the Multnomah, or Willamette, is in about 43° 45'
N. L.

In respect to Clarke's River, the map of Lewis and Clarke places the
highest source of it in about 45° 30', whilst Commander Wilkes' map
determines it to be in about 46° 30'. It is the same as the Flathead
River, and it joins the main stream of the Columbia a little below the
49th parallel. It thus appears that neither of the rivers upon which Mr.
Rush relied, supports his claim to the extent which he maintained. Had he
grounded the title of the United States towards the south upon the source
of the Lewis or Snake River, which he may possibly have intended to do,
this would have given him the 42d parallel to commence with, and Clarke's
River would have carried the claim of the United States up to very nearly
49° at its junction with the northern branch, but no higher. Lewis and
Clarke saw nothing, and knew nothing, of the northernmost branch of the
Columbia, which Mr. Thomson, the astronomer of the North-west Company,
first explored to its junction with Clarke's River, and thence to the sea,
in 1811, as already (p. 21) detailed.

In reference to the settlement of Astoria, on the southern bank of the
Columbia, at its mouth, the Pacific Fur Company does not appear to have
been authorised by the United States Government to make any effective
settlement there. On the contrary, it is asserted by writers in the United
States, who, it may be presumed, are well informed on the subject, and the
Charleston Mercury of October 11, 1845, expressly asserts the fact,--"that
the United States Government, though earnestly solicited by Mr. Astor,
refused to authorise or sanction his expedition." Mr. Astor himself
states, in his letter of January 4, 1823, to Mr. Adams, quoted by Mr.
Greenhow in his Appendix, p. 441, that it was as late as February 1813,
when he made an application to the Secretary of State at Washington, but
no reply was given to it. In addition, although Mr. Astor, according to
Mr. Washington Irving, obtained a charter from the State of New York in
1809, incorporating a company under the name of the American Fur Company,
this was intended to carry on the fur trade in the Atlantic States, and
was a totally distinct speculation from the Pacific Fur Company, which was
not formed before July 1810, and was a purely voluntary association for
commercial purposes, consisting of ten partners, of whom Mr. Astor was the
chief. Of these, however, six were British subjects, who, according to Mr.
Greenhow, p. 294, communicated the plan of the enterprise to the British
minister at Washington, and were assured by him, "that in case of a war
between the two nations they would be respected as _British subjects and
merchants_." Such a body of traders could hardly be considered to invest
their settlement at Astoria with any distinct _national_ character, much
less to represent the sovereignty of the United States of America, so as,
in taking possession of a portion of territory at the mouth of the
Columbia, to acquire for the United States the _empire_ or sovereignty of
it, at the same time with the _domain_.

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

But it was alleged on the part of the United States, that the mouth of the
Columbia river had been first discovered and entered by Captain Gray, a
citizen of the United States, in a vessel sailing under the flag of the
United States: and when it was urged by the British commissioners that the
discovery was not made by a national ship, or under national authority, it
was stated by Mr. Rush, that "the United States could admit no such
distinction, could never surrender under it, or upon any ground, their
claim to this discovery. The ship of Captain Gray, whether fitted out by
the government of the United States or not, was a national ship. If she
was not so in a technical sense of the word, _she was in the full sense of
it applicable to such an occasion_. She bore at her stern the flag of the
nation, sailed forth under the protection of the nation, and was to be
identified with the rights of the nation."

The doctrine adduced in the above passage is not in accordance either with
the practice of nations, or the principles of natural law. The occasion
here contemplated was the discovery of a country with a view of taking
possession of it. The practice of nations, according to Vattel, has
usually respected such a discovery, when made by navigators _furnished
with a commission from their sovereign_, but not otherwise; and according
to Kluber, in order that an act of occupation should be legitimate,--and
the same observation applies to all the acts which are accessorial to
occupation,--the _state_ ought to have the intention of taking possession.
It may be perfectly true that a merchant vessel, sailing under the flag of
a nation, is under the protection of the nation, and is to be identified
with the rights of the nation, within the limits of its own proper
character, that is, for all the purposes of commerce, but not beyond those
limits: the flag, indeed, entitles it to all the privileges which the
nation has secured to her citizens by treaties of commerce, but the ship
is the property of individuals, and the captain is only the agent of the
owners: he possesses no authority from the nation, unlike the captain of a
vessel of the state, who is the agent of the state, and for whose acts the
state is responsible towards other states. The Government of the United
States, however, did not consider, about the time of these transactions at
Astoria, that a trading vessel, sailing under the command of a private
citizen, could claim the protection of the flag in the same sense in which
a ship of the state possesses it, under the command of a commissioned
officer. Mr. Washington Irving has annexed, in the Appendix to his
"Astoria," a letter from Mr. Gallatin himself, addressed to Mr. Astor, in
August 6, 1835:--"During that period I visited Washington twice--in
October or November 1815, and in March 1816. On one of these two
occasions, and I believe on the last, you mentioned to me that you were
disposed once more to renew the attempt and to _re-establish_ Astoria,
provided you had _the protection of the American flag_: for which purpose
_a lieutenant's command_ would be sufficient to you. You requested me to
mention this to the President, which I did. Mr. Madison said he would
consider the subject; and, although he did not commit himself, I thought
that he received the proposal favourably." This distinction, which the
highest authorities in the United States seem at that time to have fully
appreciated, between the protection of the national flag in respect of
acquiring territory, and the protection of it in respect of carrying on
commerce, namely, that a commission from the state is required to convey
the former, whilst the latter is enjoyed at his own will by every citizen,
is seemingly at variance with Mr. Rush's remarks.

The principle, however, upon which Captain Gray's discovery, on the
hypothesis that it was a national discovery, was alleged to lead to such
important consequences, was thus stated:--"I asserted," writes Mr. Rush,
"that a nation discovering a country by entering the mouth of its
principal river at the sea coast, must necessarily be allowed to claim and
hold as great an extent of the interior country as was described by the
course of such principal river and its tributary streams." This is a very
sweeping declaration, more particularly when applied to the rivers of the
New World; and, in order that it should command the acquiescence of other
states, it must be agreeable either to the principles of natural law, or
to the practice of nations.

The principles involved in this position seem to be, that the discoverer
of the mouth of a river is entitled to the exclusive use of the river; and
the exclusive use of the river entitles him to the property of its banks.
This is an inversion of the ordinary principles of natural law, which
regards rivers and lakes as appendages to a territory, the use of which is
necessary for the perfect enjoyment of the territory, and rights of
property in them only as acquired through rights of property in the banks.
Thus, Vattel (i., § 266:) "When a nation takes possession of a country
bounded by a river, she is considered as appropriating to herself the
river also: for the utility of a river is too great to admit of a
supposition that the nation did not intend to reserve it for itself.
Consequently, the nation that first established her dominion on one of the
banks of the river is considered as being the first possessor of all that
part of the river which bounds her territory. Where it is a question of a
very broad river, this presumption admits not of a doubt, so far at least
as relates to a part of the river's breadth: and the strength of the
presumption increases or diminishes in an inverse ratio with the breadth
of a river; for the narrower the river is, the more do the safety and
convenience of its use require that it should be subject to the empire and
property of a nation."

According to the Civil Law, rivers (flumina perennia,) as distinguished
from streams (rivi,) were deemed public, which, like the sea shore, all
might use. In an analogous manner, in reference to great rivers flowing
into the ocean, a common use is presumed, unless an exclusive title can be
made out, either from prescription or the acknowledgment of other states.
Thus, Mr. Wheaton, in his Elements of International Law, (part ii., ch.
iv., § 18,) in referring to the Treaty of San Lorenzo el Real, in 1795, by
the 4th article of which his Catholic Majesty agreed that the navigation
of the Mississippi, from its sources to the ocean, should be free to the
citizens of the United States, (Martens, Traités, vi., p. 142,) Spain
having become at this time possessed of both banks of the Mississippi at
its mouth, observes:--"The right of the United States to participate with
Spain in the navigation of the Mississippi was rested by the American
Government on the sentiment, written in deep characters on the heart of
man, that the ocean is free to all men, and its rivers to all their
inhabitants." Thus, indeed, the use of a river is considered by Mr.
Wheaton to be accessory to inhabitancy; in other words, to follow the
property in the banks.

The principle, however, upon which the commissioner of the United States
defended his claim to attach such an extent of country to the discovery of
Captain Gray, was, that it was at once _reasonable_ and _moderate_;
reasonable, because there must be some rule for determining the local
extent of a discovery, and none was more proper than taking the
water-courses which nature had laid down, both as the fair limits of the
country, and as indispensable to its use and value; moderate, because the
natives of Europe had often, under their rights of discovery, carried
their claims much further. As to the reasonableness of the rule, if Mr.
Rush meant that rivers were the natural and most convenient boundaries of
territories, this proposition would command a ready assent: but the result
of the principle which he set up as to the extent of the discovery, would
be to make the high-lands, and not the water-courses, the territorial
limits. In respect, however, to the moderation of the principle, when the
magnitude of the great rivers of America, the Amazons for example, or the
Mississippi, is taken into consideration, the absolute moderation of the
rule would be questionable. But its moderation was insisted upon in
comparison with the extensive grants of the European sovereigns. The
comparative moderation, however, of a principle will not be sufficient to
give it validity as a principle of international law, if it should be not
in accordance with the practice of nations.

But Mr. Monroe, under whose administration as President of the United
States this principle was advanced by Mr. Rush, had, in the negotiations
which he, in conjunction with Mr. Pinckney, carried on in 1805 with Spain,
propounded a very different principle, viz.: "that whenever any European
nation _takes possession of any extent of sea coast_, that possession is
understood as extending into the interior country, to the sources of the
rivers emptying within that coast, to all their branches, and the country
they cover, and to give it a right in exclusion of all other nations to
the same."

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

Here then the title to the river is made subordinate to the title to the
coast, and such is the case in the charters of the Crown of England, which
Mr. Rush alludes to as confirmatory of his view. The Georgia Charter of
1732, for instance, of which he cites a portion, granted "all the lands
and territories from the most northern stream of the Savannah river, all
_along the sea coast_ to the southward unto the most southern stream of
the Alatamaha river, and westward _from the heads of the said rivers
respectively in direct lines to the South Seas_, and all that space,
circuit, and precinct of land lying _within the said boundaries_."
(Oldmixon's History of the British Colonies in America, i., p. 525.)

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

Mr. Rush, in order to show that Britain was not the only European nation,
who, in her territorial claims on this continent, had had an eye to the
rule of assuming water-courses to be the fittest boundaries, cited the
charter of Louis XIV. to Crozat. But this very charter bears testimony
against the principle advanced by Mr. Rush; for it is undeniable that the
Spaniards discovered the mouth of the Mississippi about 1540; yet, in the
face of this fact, the French king granted to Crozat all the territory
between New Mexico on the west and Carolina on the east, as far as the
sources of the St. Louis, or Mississippi, under the name of the Government
of Louisiana, as a part of his possessions, though Spain had never ceded
her title to France; on the authority, according to Messrs. Pinckney and
Monroe, of the discovery made by the French of the upper part of the
river, as low down as the Arkansas in 1673, and to its mouth in 1680, and
of a settlement upon the sea coast in the bay of St. Bernard, by La Salle,
in 1685. (British and Foreign State Papers, 1817-18, p. 327.) It was in
reference to this settlement that the principle of the possession of the
coast entitling to the possession of the interior country, had been
propounded to Spain on the part of the United States.

But if we examine this principle in its application, we shall find it
lead to very great inconveniences. In the case of the Columbia River
itself, Mr. Rush claimed the whole of the northwest coast, as far north as
the 51st parallel of north latitude, because the north branch of the river
rises in that latitude. But the mouth of Frazer's River is in 49° N. L.,
so that the discoverer of the mouth of Frazer's River would be entitled to
the coast above the 49th parallel, unless Mr. Greenhow means to confine
the application of his principle to what is strictly the valley of the
river, and this would be to make the headlands, as before remarked, the
lines of territorial demarcation. This certainly would be an intelligible
rule, whilst any other interpretation of his meaning would lead to an
endless conflict of titles. For otherwise, as observed, the discoverer of
the mouth of Frazer's River would clash with the discoverer of the mouth
of the Columbia River, as Frazer's River extends from 54° 20' to 49°, and
the discoverer of the Salmon River, which rises in about 53°, and, after
pursuing a northward course, empties itself into the sea a little below
54°, would clash with the discoverer of the mouth of Frazer's River. Mr.
Rush's principle seems to assume that all the main rivers of a country
pursue a parallel course, and that all the great valleys and mountain
ranges are conformable, which however is not the case. Thus the Columbia,
after following for some time, in a southward direction, a parallel course
to Frazer's River, is suddenly turned aside to the west by the Blue
Mountains, which it meets in about 46° N. L., and arriving at a gap in the
Cascade range, finds its way at once to the sea along that parallel,
instead of forming a great lake between the Cascade and Blue Mountains,
and ultimately working its way out where the Klamet at present empties
itself into the Pacific. Mr. Rush's principle, therefore, does not seem to
recommend itself by its convenience; but, assuming for a moment that it is
a recognised principle of international law, that a "nation discovering a
country by entering the mouth of its principal river at the sea coast,
must necessarily be allowed to claim and hold as great an extent of the
interior country as was described by the course of the principal river and
its tributary streams," the United States would only be entitled to the
valley of the Columbia River, to the country watered by the river itself,
and its tributaries: it could not claim to come across the Cascade range
on the northern side of the Columbia, to cross the highlands which turn
off the waters on their eastern side into the Columbia, and on their
western side into Admiralty Inlet; yet, by virtue of the first entrance by
Gray of the mouth of the Columbia River, the United States claim, "in
their own right, and under their absolute and exclusive sovereignty and
dominion, the whole of the country west of the Rocky Mountains, from the
42d to at least as high up as the 51st degree of north latitude."

Such were the grounds on which the original title of the United States was
set up; her derivative title on this occasion was founded upon the cession
of the title of Spain by the Treaty of Washington. In support of the
Spanish title, Mr. Rush alleged that "Russia had acknowledged it in 1790,
as the State Papers of the Nootka Sound controversy would show. But the
memorial of the Court of Spain simply states, that in reply to the
remonstrance of Spain against the encroachments of Russian navigators
within the limits of Spanish America (limits situated within Prince
William's Strait,) Russia declared "that she had given orders that her
subjects should make no settlement in places belonging to other Powers,
and that if those orders had been violated, and any had been made in
Spanish America, she desired the King would put a stop to them in a
friendly manner." (Annual Register, 1790, p. 295.) But Russia did not
acknowledge the limits of Spanish America, as set up by Spain; on the
contrary, we find M. de Poletica, the Russian minister at Washington, in
his letter to Mr. Adams of the 28th February 1822, distinctly asserting
that Russian navigators had pushed their discoveries as far south as the
forty-ninth degree of north latitude in 1741, and that in 1789 there were
Russian colonies in Vancouver's island, which the Spanish authorities did
not disturb, and that Vancouver found a Russian establishment in the Bay
of Koniac. (British and Foreign State Papers 1822-23.) Vancouver himself
states, that he found a settlement of about one hundred Russians at Port
Etches, on the eastern side of Prince William's Sound, and M. de Poletica,
in his negotiations with Mr. Adams, maintained the authenticity of the
statement in the two official letters preserved in the Archives of the
Marine at Paris, which report that in 1789 Captain Haro, in the Spanish
packet St. Charles, found a Russian settlement in the latitude of 48° and
49°. (State Papers, 1825-26, p. 500.) Fleurieu, the French hydrographer,
considers these numbers to be erroneous, and that 58° and 59° ought to be
read; but he gives no other reason than that the English traders had
fully ascertained that the Russians had no establishment to the south of
Nootka Sound, which is between 49 and 50 degrees. So far, at least, were
the Russians from practically recognising the title of Spain up to 60°
north latitude, that in 1799 the Emperor Paul granted to the Russian
American Company the exclusive enjoyment of the north-west coast as far
south as 55° north lat., in virtue of the discovery of it by Russian
navigators, and authorised them to extend their discoveries to the south
of 55°, and to occupy all such territories as should not have been
previously occupied and placed under subjection by any other nation,
(Greenhow, p. 333.) It was further urged by Mr. Rush, that Spain had
expressly asserted in 1790, that her territories extended as far as the
60th degree of north latitude; and that she had always maintained her
possessions entire, notwithstanding attempted encroachments upon them.
This, however, was not admitted by the British Minister at the Court of
Madrid: moreover, it was by implication denied in the very first article
of the treaty, by which it was stipulated that the buildings and tracts of
land on the north-west coast of America, or on islands adjacent to the
continent, of which the subjects of his Britannic Majesty had been
_dispossessed_ about the middle of April, 1789, by the Spaniards, should
be restored to the said British subjects. Again, it was contended by Mr.
Rush, that "any claim on the part of Great Britain, under the voyage of
Captain Cook, was sufficiently superseded (passing by every thing else) by
the Journal of the Spanish expedition from San Blas, in 1775, kept by Don
Antonio Maurelle, and published by Daines Barrington, a British author,"
in his Miscellanies. It is, however, quite a novel view of the law of
nations, that a _clandestine_ discovery should be set up to supersede a
_patent_ discovery, notified to all the world by the authoritative
publication of the facts. Thus Lord Stowell, in the case of the Fama (5
Robinson's Reports, 115,) says, "In newly-discovered countries, where a
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_. In a similar manner, in the case of derivative title, it is a
recognised rule of international law, that sovereignty does not pass by
the mere words of a treaty, without actual delivery. When stipulations of
treaties," observes Lord Stowell, "for ceding particular countries are to
be carried into execution, solemn instruments of cession are drawn up,
and adequate powers are _formally_ given to the persons by whom the actual
delivery is to be made. In modern times more especially, such a proceeding
is become almost a matter of necessity, with regard to the territorial
establishments of the states of Europe in the New World. The treaties by
which they are affected may not be known to them for many months after
they are made. Many articles must remain _executory_ only, and not
executed till carried into effect; and until that is done by _some public
act, the former sovereignty must remain_. In illustration of the practice
of nations being in accordance with this principle, that eminent judge
cited the instances of the cession of Nova Scotia to France in 1667, of
Louisiana to Spain in 1762, and of East Florida to Spain in 1803, in all
of which cases the sovereignty was held not to have passed by the treaty,
but by a subsequent formal and public act of notification. Claims of
territory are claims of a most sacred nature, and, as the case of vacant
lands, a claim of discovery by one nation is to supersede and extinguish
thence-forward the rights of all other nations to take possession of the
country as vacant, the reason of the thing requires that the
newly-acquired character of the country should be indicated by some public
act. Thus Mr. Greenhow (p. 116) observes, that the Government of Spain, by
its silence as to the results of the expedition of Perez in 1744, deprived
itself "of the means of establishing, beyond question, his claim to the
discovery of Nootka Sound, which is now, by general consent, assigned to
Captain Cook."

In this conference, the Convention of the Escurial, or, as it was termed,
the Nootka Sound Convention, was introduced by Mr. Rush, in accordance
with the express instructions of the United States Government. Mr.
Greenhow seems to consider that this was an impolitic step on the part of
the United States, as they thereby admitted it to be a subsisting treaty.
Mr. Rush certainly maintained that the convention contained _recognitions
of rights_, such as the exclusive colonial rights of Spain, but he further
contended that, "whilst, by it, the nations of Europe generally were
allowed to make settlements on that coast, _it was only, for the purposes
of the trade with the natives_, thereby excluding the right of any
exclusive or colonial establishments for other purposes." To the same
purport Mr. Greenhow (p. 340) in a note says, "The principles settled by
the Nootka Sound Convention were:--

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

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

But the meaning of the word "settlement" in the treaty will be obvious, if
either the antecedent facts, or the antecedent negotiations, are regarded.
In the memorial of the Court of Spain [Annual Register, 1790, p. 295,] it
is stated, that before the visit of Martinez to Nootka, Spain did not know
that the English had endeavoured _to make settlements_ on the northern
parts of the Southern Ocean, though she had been aware of trespasses made
by the English on some of the islands of those coasts. Martinez, on
arriving at Nootka, had found two American vessels, [the Columbia and
Washington,] but as it appeared from their papers that they were driven
there by distress, and only came in there to refit, he permitted them to
proceed upon their voyage.

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

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

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

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

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

That the avowed object of Capt. Colnett's expedition was in conformity
with these instructions, is confirmed by the letter which Gray, the
captain of the Washington, and Ingraham, the mate of the Columbia, both of
them citizens of the United States, addressed to the Spanish commandant
from Nootka Sound in August 3, 1792, and which Mr. Greenhow has published
in his Appendix [p. 416]--"It seems Captain Meares, with some other
Englishmen at Macao, had concluded _to erect a fort and settle a colony_
in Nootka Sound; from what authority we cannot say. However, on the
arrival of the Argonaut, we _heard Captain Colnett inform the Spanish
commodore he had come for that purpose_, and to hoist the British flag,
take formal possession, &c.; to which the commodore answered, he had taken
possession already in the name of his Catholic Majesty; on which Capt.
Colnett asked, if he would be prevented from building a house in the port.
The commodore, mistaking his meaning, answered him he was at liberty to
erect a tent, get wood and water, &c., after which, he was at liberty to
depart when he pleased; but Capt. Colnett said, that was not what he
wanted, but to build a block-house, erect a fort, and _settle a colony_
for the Crown of Great Britain. Don Estevan Jose Martinez answered, _No_;
that in doing that, he should violate the orders of his king, run a risk
of losing his commission, and not only that, but it would be relinquishing
the _Spaniards' claim to the coast_; besides, Don Martinez observed, _the
vessels did not belong to the King_, nor was he intrusted with powers to
transact such public business. On which Capt. Colnett answered, he was a
king's officer: but Don Estevan replied, his being in the navy was of no
consequence in the business."

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

Spain, at the commencement of the negotiations, expressly required through
her ambassador at the Court of London, on February 10, 1790, "that the
parties who had planned these expeditions should be punished, in order to
deter others _from making settlements on territories occupied_ and
frequented by the Spaniards for a number of years." Great Britain, in
undertaking that her subjects should not act against the just and
acknowledged rights of Spain, maintained for them an indisputable right to
the enjoyment of a free and uninterrupted navigation, commerce, and
fishery, and to the possession of such _establishments_ as they should
form with the consent of the natives of the country, _not previously
occupied_ by any of the European nations. The word "establishment" here
made use of is synonymous with "settlement," _établissement_ being the
expression in the French version of the treaty wherever _settlement_
occurs in the English version. Both these terms have a recognised meaning
in the language of treaties, of a far wider extent than that to which Mr.
Rush sought to limit the language of the Convention of the Escurial. In
the convention itself the word "settlement" is applied, in the 4th
article, to the Spanish colonies; in the 5th, it is applied to the parts
of the coast occupied by the subjects of either Power since 1789, or
hereafter to be occupied; in the 6th, to the parts of the coast which the
subjects of both Powers were forbidden to occupy. There is nothing in the
context to warrant the supposition that the usual meaning was not to be
attached to the word "settlement" on this occasion, namely, a _territorial
settlement_, such as is contemplated in the 3rd article of the Treaty of
1783: "and that the American fishermen shall have liberty to dry and cure
fish in any of the _unsettled_ bays, harbours, and creeks of Nova Scotia,
Magdalen Islands, so long as the same shall remain unsettled: but so soon
as the same, or either of them, shall be _settled_, it shall not be lawful
for the said fishermen to dry or cure fish at such _settlement_ without a
previous agreement with _the inhabitants, proprietors, or possessors of
the ground_."

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

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

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




CHAPTER XVI.

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

    Revival of Negotiations.--Written Statements of respective
    Claims.--The United States.--Great Britain.--Rights supposed to be
    derived from the Acquisition of Louisiana.--Jefferys' French
    America.--Cession of Canada.--The Illinois Country.--Treaty of
    Utrecht.--Treaty of Paris.--French Maps.--Charters.--Declaration of
    Court of France in 1761, as to respective Limits of Canada and
    Louisiana.--Contiguity of Territory.--Hudson's Bay
    Territories.--Atlantic Colonies.--Cession by France of the left Bank
    of the Mississippi.--Mr. Gallatin's Doctrine of
    Contiguity.--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 are navigable
by boats. The claims of the two nations were on this occasion formally set
forth in written statements, and annexed to the protocol of the sixth and
seventh conferences respectively. They were published with President
Adams's Message to Congress of December 12, 1827, and are both inserted in
full in the _second_ edition of Mr. Greenhow's History, lately published.
The British statement alone was published in his first edition, but the
United States' counter-statement, a very able paper, which was a great
desideratum, has been annexed to the second edition.

It is much to be regretted that so interesting a collection of state
papers as the 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 the
_contiguous_ vacant territory, and to the occupation and sovereignty of
the country as far as the Pacific Ocean; and, secondly, on the several
discoveries of the Spanish and American navigators. These distinct 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 many
_steps in the progress of discovery, and giving only imperfect claims to
each party_. All these various claims, from whatever consideration
derived, are now brought united against the pretensions of any other
nation."

"These united claims," it was urged, "established a stronger 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 claimed _no exclusive sovereignty_ over 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 province extended as far as the
most northern limit of the French possessions in North America, and
thereby west of Canada or New France. The settlement of that northern
limit still further strengthens the claim of the United States to the
territory west of the Rocky Mountains."

The meaning of this 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, and
_thereby_ cut off the western portion of Canada or New France, and so
consequently extended itself to the South Seas. If this be the correct
view of the argument, then it may be confidently 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 into _that part_ of the river St. Louis. The words
of the grant, if strictly interpreted, limit the province on _both sides_
of the Mississippi _to that part from the sea-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 the province of Louisiana the indefinite
extent northward which Mr. Gallatin suggests, for the Marquis de
Vaudreuil, in ceding the province of Canada to Sir J. Amherst, in 1760,
according to his own letter, (Annual Register, 1761, p. 168,) expressly
described Louisiana as extending on the one side to the carrying-place of
the Miamis, and on the other to the head of the river of the Illinois. The
Illinois country itself was a limited district, watered by a river of that
name, which had been so called from an Indian nation settled on its banks.
This tribe or nation was said to have migrated from the west, along the
banks of the Moingona, (the 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 French _possessions_ in North America, if by the
term _possessions_ is meant the territory in which they had made
settlements; but if the term is intended to include the territory in which
they claimed a right to found settlements, the statement would not be
correct.

By the Treaty of Utrecht, the British had precluded themselves from
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 the _opinions of
the geographers_ who 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 that _all 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 the _contiguity 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 of _contiguity_. On the contrary, in
regard to the Hudson's Bay territories, the peaceable acquiescence of the
Marquis de Frontenac, then Governor of Canada, in the settlement of the
Bay of Hudson by the English company, was maintained to be a bar to any
claims on the part of the French to question, at a subsequent period, the
title of which the British crown asserted on the grounds of _discovery_.
Again, in respect to the Atlantic colonies, their right to extend
themselves to the banks of the Mississippi was never enforced against the
French, "as growing out of the contiguity of territory, and as 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
been _contentious_ before the surrender of Canada, and in respect to the
nations on the east bank of the Mississippi, Great Britain confined
herself to 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 the
_British settlements and the Mississippi_." The result of these and
subsequent negotiations was, that France, by the seventh article of the
Treaty of Paris, agreed that the limits of the British and French
territories respectively should be fixed by a line drawn along the middle
of the Mississippi, from its source to the River Iberville [depuis sa
naissance jusqu'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. The western boundary of
Louisiana was never attempted to be extended by the French beyond the
limits of Crozat's grant, by which Louisiana was expressly defined to be
bounded by New Mexico on the west, and impliedly by the head-waters of the
Missouri river.

"The actual possession," Mr. Gallatin maintained, "and populous
settlements of the valley of the Mississippi, including Louisiana, and now
under one sovereignty, constitute a strong claim to the westwardly
extension of that province over the _contiguous_ vacant territory, and to
the occupation and sovereignty of the country as far as the Pacific Ocean.
If some trading factories on the 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
been abandoned by all European nations from the year 1567 till 1663, when
Charles II. granted letters patent to the Earl of Clarendon and seven
others, 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 an _exclusive 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 the _vis major_, and strikes at the root of the fundamental
axiom of international law, that all nations are upon a footing of perfect
equality as to their obligations and rights. "Power or weakness," observes
Vattel, "does not in this respect produce any difference. A dwarf is as
much a man as a giant: a small republic is no less a sovereign state than
the most powerful kingdom;" so that every argument which rests on the
grounds that the millions already within reach of the Pacific Ocean,
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
in that charter, "that no British subjects, other than and except the
said Governor and Company, and their successors, and the persons
authorised to carry on exclusive trade by them, shall trade with the
Indians" within such parts of North America as are "to the northward and
to the westward of the lands and territories belonging to the United
States of America."

In respect to the derivative 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. The
settlements there contemplated were only to be made in places not already
occupied, and further, "in all places wherever the subjects of either
_shall have made settlements_ since the month of April 1789, _or shall
hereafter make any_, the subjects of the other shall have free access, and
shall carry on _their trade_ without any disturbance or molestation."
Unless the settlements here alluded to would have been considered to give
a 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 have _establishments or
colonies_ planted upon the coasts or in the ports in dispute, it did not
follow that such coast or port did not belong to her." Unless therefore
some such provision had been introduced into the treaty, the subsequent
settlements on the north-west coast would have been closed against all
foreign traders, in conformity to the general laws of both countries.

But if Mr. Gallatin is justified in advancing, as a principle of
international law, that "mere factories, established solely for the
purpose of trafficking with the natives, and without any view to
cultivation and permanent settlement," such as he alleges the trading
posts of the North-west Company to be, cannot of themselves give a good
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 solely
_for the purpose of trafficking with the natives_, and not with the
object of making discoveries, or with any authority to take possession of
territory for purposes of permanent settlement, could never be held
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 things _is not incompatible with distinct jurisdiction_, the argument
will fall to the ground.

It appears then to have been decided in the United States Courts, that,
"although the territorial line of a nation, _for the purposes of absolute
jurisdiction_, may not extend beyond the middle of the stream, yet the
right to the use of the whole river or bay _for the purposes of trade_,
navigation, and 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 of _use for the purposes of
trade being in a degree common_ to both nations, yet such a state of
things being _not incompatible with distinct jurisdiction_ and
sovereignty.

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

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

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

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

The common right of either party to make settlements in _places not
occupied_ was recognised by the convention. Occupation was thus declared
to be the test of exclusive 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 and _take possession_ of an island, or _any 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 which _they first
settled_." (l. ii., § 95.)

The mutual right of the two parties to settle in places not yet occupied,
having thus been acknowledged by the convention, the sovereignty was from
the nature of things left in abeyance _pending the establishing of such
settlements_, but there was no provision in the treaty to suspend the
operation of the general law of nations, in respect to the territorial
rights consequent on such settlements. To negative the operation of the
general law, it would be necessary to show that the _dominium utile_, as
distinct from the sovereignty, was all that accrued by such settlements.
But in cases in which the territory in use, (_dominium utile_) as distinct
from the territory in chief (_dominium eminens_,) has been granted by
treaty, such a concession has never been said to be granted "for the
purpose of making settlements," and it may be observed that in such cases,
express reference is made to the party who retains the territory in chief.

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

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

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

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

In this case it will be seen that his Catholic Majesty granted to Great
Britain the usufructuary right, or, according to the language of the Civil
Law, Jus utendi, fruendi, 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, the
_subjects_ of either party were declared entitled to make _settlements_ in
places not already occupied. If now there was a reservation of territorial
right in chief by one party, then the families settling there, which is in
effect colonising, (for the cultivation of the soil must be allowed them,)
could not be the subjects of the other party, if they settled and became
domiciled there; yet they are acknowledged to retain their character. Now,
such as the subject is, such is the jurisdiction. If, for instance, the
absolute and sole territory of the north-west coast of America, exclusive
of any other Power, was possessed and retained by Spain, then the
jurisdiction over all persons settling there belonged to Spain: the
residents in that territory were the subjects of Spain _pro 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 British subjects settling in the places not
already occupied on the north-west coast of America could not thereby be
divested of the character of their original domicile, for it was only in
such character that they were 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.




CHAPTER XVII.

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.--True
    Character 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 they not 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 a _public_ but a
_private_ ship, 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 a _trading_
and not a _national_ vessel. 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 she _had 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 that _for the purposes of discovery_ a 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
the practice 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 ventures _intra
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 engaged _on board of a British merchant vessel_
in the service of the ship, have been by virtue of the _lex loci_
immediately taken from under _the 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 the
confidence 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 the _credential_ of 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 it _nationality_, the public flag _the 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, we are 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 vessels_ alone. _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 "the _domain_, 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
thinks proper, but also the _empire_, 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 the _protection of
the American flag_: for which purpose a _lieutenant's command_ would be
sufficient to you. You requested me to mention this to the President,
which I did. Mr. Madison said, he would consider the subject, and although
he did not commit himself, I thought that he received the proposal
favourably."

It remains to be considered whether the practice of nations has attached
different considerations to the flag in respect to _discoveries_.
_Discoveries_, however, as forming the ground-work of territorial title,
are in themselves _technical_. They are _inchoate acts of sovereignty_.
"Even in newly-discovered countries," said Lord Stowel, in the case of the
Fama, already cited, "where _a 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 a _commission 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 word _a 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 the _discovery_ of 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 principal _northern_ branch, which they called
Lewis's; followed that to its junction with the great _northern branch_,
which they called Clarke; and thence descended to the mouth of the river,
where they landed, and _encamped 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
almost _from its head-springs to the Pacific, passing the winter_ of 1805
and 1806 _on 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 principal
_northern_ branch, more particularly as Clarke's River is immediately
after spoken of as the great _northern_ branch. Lewis' River must
evidently have been intended to be described as the principal _southern_
branch, 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 the _great 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
gave _the 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 Alexander Mackenzie 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 sources _de 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
with _the 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 the _Columbia 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 northern branch, 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 encamped _on
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 on _its northern
shore_, near the ocean." When it is remembered that it is the possession
of the _north bank_ of 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 of _degree_, but of _kind_, it may not be unimportant to
remark, that Lewis and Clarke passed the winter of 1805-6 on the _southern
shore_ of 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 they _encamped_ and _wintered, was on the south
side of the Columbia_, amongst the Clatsop Indians, and from this very
circumstance they gave to it the name of _Fort 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 the _cumulative title_ of the
United States, and had not Mr. Buchanan repeated the statement of his
predecessor more explicitly, 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_. Early in 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 more citizens 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 respected _as 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.

It can hardly be contended that the settlement at Astoria had a definite
national character, much less that it could impart the national
sovereignty of the United States, to the territory, wherein it was
established. The Astorians might perhaps maintain their claim to the
domain (dominium utile,) but that they should set up a title to the
sovereignty (dominium eminens,) or be held to convey a title to any state
which should choose to assert it through them, is not conformable to the
practice of nations. But the plenipotentiaries of the United States
contend that they have an exclusive title to the entire valley of the
Columbia, by virtue of this settlement. Spain, however, did not admit this
title in the negotiations preceding the Florida Treaty, nor did the United
States venture to set it up. When Don Luis d'Onis, in resuming the
negotiations, proposed, in his letter of January 16, 1819, (British and
Foreign State Papers, 1819-20, p. 565,) to concede, on the part of his
Catholic Majesty, as the boundary between the two states, "a line from the
source of the Missouri, westward, to the Columbia River, and along the
middle thereof to the Pacific Ocean," and trusted it would be accepted, as
presenting "the means of realizing the President's great plan of extending
a navigation from the Pacific to the remotest points of the northern seas,
and of the ocean," no claim was advanced to the valley of the Columbia;
but Mr. Adams briefly stated, in reply, that "the proposal to draw the
western boundary line between the United States and the Spanish
territories on this continent, from the source of the Missouri to the
Columbia River, cannot be admitted." Again, when the Spanish commissioner,
in his letter of February 1, 1819, stated that, "considering the motive
for declining my proposal of extending the boundary line from the Missouri
to the Columbia, and along that river to the Pacific, appears to be the
wish of the President to include within the limits of the Union all the
branches and rivers emptying into the said River Columbia," and proposed
to draw the boundary along the River S. Clemente, or Multnomah, to the
sea; and delivered a project of a treaty, in which it was stipulated that
his Catholic Majesty should cede all the country belonging to him eastward
of the boundary line to the United States; no original title to the entire
valley of the Columbia, no claim to the settlement of Astoria, as a
national settlement, was advanced by the United States: yet Astoria was on
the western side of the Multnomah or Willamette River, as it is now
called, and was assumed in both the above proposals to be beyond the
limits of "the dominions of the Republic."

Astoria passed into the hands of the North-west Company by peaceable
transfer. It was sold by the partners resident in the establishment, after
they had dissolved the association, which, by the terms of the contract,
the parties had power to do. When Captain Black, in his Britannic
Majesty's sloop-of-war the Racoon, arrived there in 1813, he did not
capture Astoria, for it was not the property of an enemy, but he took
possession of it in the name of his Britannic Majesty, and hoisted the
British ensign; thereby formally asserting the sovereignty of Great
Britain over the property of British subjects. In 1818, the government of
the United States was formally placed in possession of Astoria; and this
was the first occasion on which an act of sovereignty was exercised by
that Power. Mr. Calhoun states that this act "placed our possession where
it was before it passed into the hands of British subjects." On the
contrary, it placed Astoria in the hands of the government of the United
States, in which hands it had never been before: for, antecedently to the
transfer to the North-west Company by purchase, it was in the hands of an
association, the majority of which were British subjects, who could not,
according to any received principle of international law, be held to have
represented the sovereignty of the United States.

It was admitted by Lord Castlereagh, in the discussions with Mr. Rush
antecedent to the restoration of Astoria, that the United States were
entitled to be reinstated there, and "to be the party in possession
_whilst treating of the title_." At that time the United States had
confined their claims to the restitution of a post, which, as they
asserted, "had been established by them on the Columbia River, and had
been taken during the war, and consequently came within the provisions of
the first article of the Treaty of Ghent." Mr. Bagot, in his reply to Mr.
Adams, of 26th November, 1817, (British and Foreign State Papers, 1821-22,
p. 461,) stated that, "from the reports made to him, it appeared that the
post had not been captured during the late war, but that the Americans had
retired from it under an agreement made with the North-west Company, who
had purchased their effects, and who had ever since retained peaceable
possession of the coast." The whole discussion was thus evidently limited
to the settlement at Astoria; and Lord Castlereagh admitted, on the
statement of the United States, that they had a primâ facie claim to be
reinstated in the post, in conformity to the provisions of the treaty, and
_to be the party in possession whilst treating of the title_.

Mr. Calhoun, in the further course of his argument, contends that, after
this admission on the part of Lord Castlereagh, the Convention of 1818
"preserved and perpetuated _all our claims to the territory_, including
the acknowledged right to be considered _the party in possession_;" and
Mr. Buchanan, in still more explicit language, maintains the same
position. "He claims, and he thinks he has shown, a clear title, on the
part of the United States, _to the whole region drained by the Columbia_,
with the right of being _reinstated, and considered the party in
possession whilst treating of the title_; in which character he must
insist on their being considered, in conformity with _positive treaty
stipulations_. He cannot, therefore, consent that they shall be regarded,
during the negotiations, merely as _occupants in common_ with Great
Britain. Nor can he, while thus regarding their rights, present a
counter-proposal, based on the supposition of joint occupancy merely,
until the question of title to the territory is fully discussed." This
argument is essentially unsound throughout. The title of the United States
to possess the settlement, in other words, _not to be excluded from the
territory_, is strangely confounded with the title _to exclude the British
from the entire territory_. These titles are assumed to be identical,
being most distinct. Great Britain does not require to be considered as an
_occupant in common of Astoria_. The United States were never admitted _by
positive treaty stipulations_ to be the party entitled to be considered
_in possession of the whole region of the Columbia_, which Mr. Buchanan
maintains to have been conceded by Lord Castlereagh. But Great Britain
does require to be considered as _an occupant in common of the region of
the Columbia_, and the United States is entitled to the _right of adverse
possession as far as the settlement at the mouth of the river_, on its
south bank is concerned. What, however, is the effect of such a right of
possession? Simply that, as far as the settlement of Astoria is concerned,
it is not necessary for the United States to prove its _right of
dominion_. Its _right of possession_ is a valid right, unless a right of
dominion can be established by some other Power. But Great Britain asserts
no right of dominion,--she does not claim to evict the United States from
its actual possession,--but, as she claims no exclusive title for herself,
so she recognises no exclusive title in any other Power. The principle of
a mutual right of occupancy of the territory was admitted, when it was
agreed that the United States should be placed in possession _sub modo_,
whilst treating of the title. The question, however, between the two
governments was not one of _law_, but of _fact_. Issue had been joined in
the previous letters between the Secretary of State and the Minister of
Great Britain, at Washington: whilst the former asserted Astoria had been
captured during the war, the latter maintained that it had passed into the
hands of the North-west Company by peaceable purchase.

The United States asserted that Astoria had become a British possession by
virtue of the _jus belli_, the operation of which was in this case
expressly suspended by the first article of the Treaty of Ghent: on this
plea they claimed that it should be restored to them. Great Britain, on
the other hand, maintained that it had passed into the hands of the
North-west Company by peaceable purchase: on this plea they contended that
the United States were not entitled to demand its restoration. When,
therefore, the United States acquiesced in the proposal of Lord
Castlereagh, they admitted the legal effect of the fact asserted by Great
Britain, if it could be substantiated. They thus admitted the common right
of Great Britain to form settlements, by agreeing to treat of the title on
the ground alleged by Great Britain, precisely as Great Britain admitted a
corresponding right in the United States, by agreeing to discuss the
alleged fact that Astoria had passed into the hands of the British _jure
belli_, by which it was implied that it had been antecedently a possession
of the United States. We thus find in the negotiations of 1818, which
terminated in the Convention of the 20th October, concluded fourteen days
after the actual restoration of Astoria, that Messrs. Gallatin and Rush
nowhere hint at an exclusive title in the United States. "We did not
assert," they say in their letter to Mr. Adams, of October 20, 1818, "that
the United States had a _perfect right_ to that country, but insisted that
their claim was at least good against Great Britain," (British and Foreign
State Papers, 1819-20, p. 169.) Yet, in the face of this solemn admission,
at the commencement of the earliest negotiations, and of the fact that the
title has been treated of on so many occasions, Mr. Buchanan now asserts
that "our own American title to the extent of the valley of the Columbia,
resting as it does on discovery, exploration, and possession--a possession
acknowledged by a most solemn act of the British government itself, is a
_sufficient assurance against all mankind_; whilst our superadded title
derived from Spain _extends our exclusive rights_ over the whole territory
in dispute against Great Britain."

Such is the outline of the grounds on which the United States set up an
exclusive title to the entire valley of the Columbia, that is, a title to
exclude Great Britain from making settlements there. Mr. Buchanan
observes, that this title is "older than the Florida Treaty of February
1819, under which the United States acquired all the right of Spain to the
north-west coast of America, and exists independently of its provisions.
Even supposing, then, that the British construction of the Nootka Sound
Convention was correct, it could not apply to this portion of the
territory in dispute. A convention between Great Britain and Spain,
originating from a dispute concerning a petty trading establishment at
Nootka Sound, could not abridge the rights of other nations. Both in
public and private law, an agreement between two parties can never bind a
third, without his consent, expressed or implied."

Mr. Buchanan thus appears disposed to renounce the derivative title of
Spain, upon which, as completing the defects in the original title of the
United States, considerable stress had been elsewhere laid, "supposing the
British construction of the Nootka Convention to be correct:" in other
words the commissioners of the United States claim to avail themselves of
the provisions of this convention, if they can be made to support their
title, but to repudiate them, if they should be found to invalidate it,
which of course is inadmissible. But when Mr. Buchanan says, "A convention
between Great Britain and Spain _could not abridge the rights of other
nations_," though the proposition be abstractedly true, yet on this
occasion it does not apply. First of all, because Great Britain, in
recognising the right of Spain to make settlements on the north-west coast
in places not yet occupied, did not either at the time of the convention,
or subsequently, recognise such a right as an exclusive right in respect
to other nations. Secondly, because Spain, in recognising the right of
Great Britain to make settlements in an analogous manner, did not thereby
declare other nations excluded from making settlements; in fact, there is
not a single word within "the four corners" of the treaty, which can be
held to abridge the rights of other nations. Thirdly, because the United
States, at the time when the convention was concluded, had no other right
than that of making settlements, which Great Britain has never once
maintained that the Nootka Convention abridged, nor does it at this moment
contend so.

If, on the other hand, the United States had an _exclusive title_ to the
valley of the Columbia before the Treaty of Florida, or in other words, as
asserted in 1824, to the entire territory between 51° and 42°, and that
title existed independently of its provisions, it is difficult to
understand the object of the protracted negotiations between Don Luis de
Onis and Mr. Adams, which resulted in his Catholic Majesty first
withdrawing from the Rocky Mountains to the Columbia River, then from the
Columbia to the Multnomah or Willamette River, and finally ceding all his
rights, claims, and pretensions to the territory north of the parallel of
42°. Mr. Buchanan's position is untenable in the face of the negotiations
antecedent to the Florida Treaty.

The original title, however, of the United States, does not satisfy the
requirements of the law of nations, in the extent in which it is
maintained to be effective. Let it be kept in mind that Great Britain has
never claimed the exclusive privilege of settling on the north-west coast
of America, to the north of the parts occupied by Spain, but she maintains
her right not to be excluded from any places not already occupied. The
United States, on the other hand, are not satisfied with claiming a right
to make settlements, but they assert a right to exclude Great Britain from
making settlements, and this, too, by virtue of an act performed by a
private citizen, without any commission from the state, subsequent to the
time when the right of Great Britain to make settlements had been formally
recognised by Spain in a solemn treaty, and was thus _patent_ to the
civilised world.

This very act, however, Mr. Calhoun admits to be defective for the purpose
of establishing an exclusive title, when he says, "Time, indeed, so far
from impairing our claims, has greatly strengthened them since that
period, for since then the Treaty of Florida transferred to us all the
rights, claims, and pretensions of Spain to the whole territory, as has
been stated. In consequence of this, our claims to the portion drained by
the Columbia River--the point now the subject of consideration--have been
_much strengthened_ by giving us the _incontestable claim to the discovery
of the river by Heceta_ above stated."

It is thus admitted, that the first entering of the River Columbia by
Gray, was not a _discovery_, but an _exploration_. There can be _no second
discovery_ for the purpose of founding an exclusive title. Heceta's
discovery is incontestable for the _purpose of barring any subsequent
claim by discovery_, and the original title of the United States,
resolves itself into a title founded upon the first exploration of the
entrance of the Columbia from the sea, and on the first exploration of its
southern branches from the Rocky Mountains. Such a title, however, can
neither from the nature of things, nor the practice of nations, establish
a right to exclude all other nations from every part of the entire valley
of the Columbia. On the contrary, the assertion of such a right is
altogether at variance with _the comity of nations_, on which alone title
by discovery rests. For, if the United States maintain that the discovery
of the Columbia River, for the purpose of establishing a territorial
title, dates from the enterprise of Gray, they set aside the discovery of
Heceta, in opposition to the comity of nations; yet it is upon this very
comity of nations that they must rely to obtain respect for their own
asserted discovery.

But when Mr. Calhoun maintains that, by the Florida Treaty, the title of
the United States was much _strengthened_ by the acquisition of the
incontestable claim to the discovery of the river by Heceta, he admits
that the title of the United States was _an imperfect title_ before that
treaty; for a perfect title is incapable of being
strengthened,--_exclusiveness does not admit of degree_. That the title of
the United States to form settlements in the parts not occupied was
strengthened by the Florida Treaty, is perfectly true. Great Britain,
before that treaty, _might have_ refused to recognise any title in the
United States under the general law of nations; but after that treaty, she
would be precluded by the provisions of the Nootka Sound Convention, as
the United States would thence-forward represent Spain, and allege a
recognised right of making settlements under that convention; but, that
the original title of the United States, which was not an exclusive title
by the law of nations, could become an exclusive title against Great
Britain by the acquisition of the title of Spain, which was expressly not
exclusive under a treaty concluded with Great Britain, independently of
other considerations which were duly weighed at the conclusion of the
Nootka Convention, requires only to be stated in plain language to carry
with it its own refutation.

The effects of the Nootka Convention, or rather Convention of the
Escurial, have already been discussed in the two preceding chapters. Mr.
Buchanan, in his letter of July 12, 1845, says, "Its most important
article (the third) _does not even grant in affirmative terms the right_
to the contracting parties to trade with the Indians and to make
settlements. It merely engages in negative terms, that the subjects of the
contracting parties 'shall not be disturbed or molested' in the exercise
of _these treaty-privileges_." Surely there is a contradiction of ideas in
the above passages. How can the right to trade with the Indians and to
make settlements be termed a _treaty-privilege_ in the latter sentence,
when in the former sentence it is expressly denied to have been _granted_
by the treaty? Mr. Buchanan, however, in asserting that the third article
did not _grant in affirmative terms the right_ specified in it, adopts
precisely the same view that the British commissioners have throughout
maintained; namely, that the third article did not contain a _grant_, but
a mutual _acknowledgment_ of certain rights in the two contracting
parties, with respect to those parts of the north-western coast of America
not already occupied. Mr. Buchanan, however, in a subsequent letter says,
"The Nootka Convention is arbitrary and artificial in the highest degree,
and is anything rather than the mere acknowledgment of simple and
elementary principles consecrated by the law of nations. In all its
provisions it is expressly confined to Great Britain and Spain, and
acknowledges no right whatever in any third Power to interfere with the
north-west coast of America. Neither in its terms, nor in its essence,
does it contain any acknowledgment of _previously subsisting territorial
rights_ in Great Britain, or any other nation. It is strictly confined to
future engagements, and these are of a most peculiar character. Even under
the construction of its provisions maintained by Great Britain, her claim
does not extend to _plant colonies_, which she would have had a right to
do under the law of nations, had the country been unappropriated; but it
is limited to a mere right of joint occupancy, not in respect to any part,
but to the whole, the sovereignty remaining in abeyance. And to what kind
of occupancy? _Not separate and distinct colonies, but scattered
settlements_, intermingled with each other, over the whole surface of the
territory, for the _single purpose of trading_ with the Indians, to all of
which the subjects of each Power should have free access, the right of
exclusive dominion remaining suspended. Surely, it cannot be successfully
contended that such a treaty is 'an admission of certain principles of
international law,' so sacred and so perpetual as not to be annulled by
war. On the contrary, from the _character of its provisions_, it cannot be
supposed for a single moment that it was intended for any purpose but
that of a mere _temporary arrangement_ between Great Britain and Spain.
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 passage 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 asserted 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 illustrate 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 circumstance, 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 Partition
    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 Anticipations 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
title_ 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 _primâ facie_ evidence of a right to form settlements in the
country; first, in the recognition of this right by a Power which had
asserted an exclusive title 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, constitutes 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 partition 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 title of
the United States gave them exclusive rights against all mankind, _the
superaddition_ of the Spanish title 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 title 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 title
antecedent to such possession. But if the superadded Spanish title
conferred an extension of exclusive rights on the United States, it must
have been _proprio vigore_ an exclusive title; 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 titles 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 title in the
United States, antecedent to their acquisition of the Spanish title 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
entitled to be considered as the party in possession of Astoria whilst
treating of the title, 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
title of Spain before the time when the United States assert their own
exclusive title to have commenced; and she had acknowledged the common
title of the United States, pending the continuance of the recognised
title of Spain: so that she is precluded from recognising the title 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 title, or their
derivative title from Spain, as an exclusive title.

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 assert 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
assenting to be placed in possession of Astoria "whilst treating of the
title," 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 passed into the hands of the North-west Company by peaceable transfer.
In agreeing then to treat of the title, 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 title 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 title, 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 title; Great
Britain rested on the received principles of international law, according
to which her subjects, in common with those of other states, were entitled
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
title 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 title: 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 title.

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 assert 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 latitude _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
latitude." He further said, that "in the opinion of my government, the
title of the United States to the whole of that coast, from latitude 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 title."

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 latitude;
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 latitude 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 latitude, 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 title 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
Canal, 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 passing 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 embarrassed, 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
constitutes "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 dépôt
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 asserts that by the Treaty of Florida she holds in her
hands all the Spanish title, 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
shores 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 title, 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
Encompassed" 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
ambassador of Spain, approved and ratified his acts; and in her reply to
the ambassador's remonstrances against Drake's territorial aggressions,
expressly asserted, according to Camden, that as she did not acknowledge
the Spaniards to have any title 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 asserted 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 shores, 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 shore 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 _titles_ 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
latitude of 54° 40'?" and assumes, 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 _title_, to infer that the
establishment of a _common title_ must lead to the admission of an
_exclusive title_.

With much more reason might Great Britain have set up an exclusive title
against the United States, which she has, in the spirit of moderation,
forborne to do. She might have said, "We were entitled 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
title by prescription in favour of Russia, from 60° north latitude to 54°
40', against their own Spanish derivative title, the President of the
United States declares, in his solemn message, his "settled conviction
that the British pretensions of title 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 titles, or in respect to the conflict of the title of Great
Britain recognised in the Convention of the Escurial, with the title 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 latitude.
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 title, and
Great Britain, have recognised, by separate treaties in 1824 and 1825, the
territorial rights of Russia as far south as 54° 40' north latitude,
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
title to the same northern boundary. When, however, the United States
claim to hold in their hands the title of Spain against Great Britain, and
upon the strength of that title propose to make a final partition 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 latitude 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 title from Spain as against Great Britain, if it be advanced as
the basis of the negotiation, which has been the case, cannot assume 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
entitled 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 assign 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 principal 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 hitherto 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 partition 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 circumstances of the country justify Mr. Webster's
anticipations 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.


THE END.




INDEX.


  Adams, J. Quincy, negotiates the Florida Treaty, 169.

  Aguilar, Martin d', 53, 58.

  Alarcon, Fernando, 73.

  Albion, New, 15.

  Anahuac, plateau of, 14.

  Anderson on Commerce, 148, 158.

  Anian, Straits of, said to be discovered by Cortereal, in 1500, 18.

  Argonaut, the, seized at Nootka, 81.

  Arkansas River, 166, 170.

  Astor, John Jacob, 23, 236.

  Astoria, established in 1811, 24.
    Transferred by purchase to North-west Company in 1813, 25, 192, 238.
    Surrendered to the United States, 239, 252.
    Sub modo, 241.
    Not a national settlement, 237.

  Atlantic Colonies, 213.


  Barclay, Captain, first descries the Straits of Fuca, 19, 62.

  Behring's Voyage, 54.

  Belsham's History of England, 92.

  Bernard, St., Bay of, 155.

  Biographie Universelle, error as to Drake, 30, 36.
    As to Gali, 54.

  Bodega, Port de la, 42, 58.

  Bodega y Quadra, 56.

  Bracton de Legibus, 113.

  Broughton, Lieut., explores the Columbia, 104.
    Takes possession of the country, 105.

  Bulfinch's Harbour, 254.

  Bynkershoek on Discovery, 118.


  Cabrillo, Juan Rodrigues, voyage in 1542, 26.

  Caledonia, New, 15.

  Calhoun, Mr., letter of Sept. 3, 1844, 200.
    Speech in 1843, 264.

  California, peninsula of, discovered in 1539, by F. de Ulloa, 26.
    A peninsula, 54.
    Jesuit missions, 54.
    A cluster of islands, 74.
    Spanish possessions, 167.

  Camden, Life of Elizabeth, 45.

  Canada, limits of, 150.
    Cession of, 211.

  Carver, Jonathan, travels in North America, 16.
    First announces a river called Oregon, or the Great River of the West, 16.

  Cascade Canal, 20.

  Castillo, Domingo de, 26.

  Cavendish, Thomas, voyage of, 32.

  Cavallo, Juan, 77.

  Channing, Dr., 228.

  Charters, 212.
    Of Georgia, 197.
    Carolina, 196.
    To what extent valid, 157.
    Of the Hudson's Bay Company, 158.
    Argument from, 159.

  Clarke. See Lewis and Clarke.

  Clarke, River, discovered, 22, 233.
    Source in 45° 30', 190.

  Clatsop, Fort, 22, 234.

  Cliffe, Edward, his narrative, 28.

  Colnett, Capt., 62, 79.
    Instructions to, 204.

  Colorado, Rio, del Occidente, 14.

  Columbia, country of the, 17.
    Mouth, 94.
    Bay, 95.
    River, 105.
    Progressive discovery of the River, 108.
    Proposed as a boundary by Spain, in 1819, 165.
    Exploration by Gray, 243.
    Northernmost bank, 191.
    Course, 198.
    Extent of valley, 198.

  Columbia, merchant ship, 16, 62.
    Log book, 101.

  Congress, documents of, 208.

  Contiguity, doctrine advanced by Mr. Gallatin, 218.
    A reciprocal title, 127.

  Convention of 1818, 145, 178, 241.
    Of 1803, not ratified, 251.
    Of 1806, ditto, 147.

  Conventions, transitory, 129.
    Mixed, 133.

  Cook, Captain, instructions to, 15, 58.
    Discovery of Nootka, 116.

  Coronado, Vasquez de, 153.

  Cortereal, Gaspar de, 18.

  Crozat's grant of Louisiana, 155.


  Davis, John, the navigator, 44.

  Descubierta and Atrevida, voyage of the, 66.

  Discovery, title by, 116.
    Not in the Roman law, 115.
    Conditions of, 121.
    Progressive, 122.
    Requires Notification, 200.
    An inchoate act of sovereignty, 230.

  Dixon and Portlock, 61, 76.

  Domain, eminent, 111.
    Useful, 111.

  Drake, Sir G., his voyage, 27.
    French account, 30.
    Knighted by Queen Elizabeth, 39.
    Limits of voyage, 40.
    His discovery maintained by British negotiators, 186.

  Duflot de Mofras, 93, 160.

  Duncan and Colnett, 62.


  Elizabeth, Queen, reply to Mendoza, 118.
    Speech of, 45, 259.

  Escarbot's Histoire de la Nouvelle France, 167.

  Escurial, Convention of the, 86, 201, 244.
    Mr. Greenhow's view, 90.
    British rights under, ascertained, 262.

  Eyriés, M., error as to Drake, 35.
    Gali, 52.


  Factories, or comptoirs, 206.

  Falconer's treatise on the Mississippi, 155.

  Family Compact, 86.

  Felice and Iphigenia, 77.

  Ferrelo, Bartholeme, 27.

  Flag, on the, Dr. Chaning, 228.
    Mr. Gallatin, 230.

  Fletcher, World Encompassed, 28, 35.
    Manuscript notes, 38.

  Fleurieu, 30, 47.

  Florida Treaty. See Washington.

  Fonte, Bartholemé, 70, 171.

  Francisco, Port San, the northernmost possession of Spain, 42, 260.

  Frazer's River, 20.

  Frazer's Lake, 21.
    Fort, 261, 262.

  Fuca, Juan de, Straits of, 19.
    Discovery claimed by Martinez, 56.
    Discovered by Barclay, 62.
    Story of, 66.
    Not mentioned in Spanish archives, 69.
    Spanish claim, 171.

  Fur Company, American, 23.
    Missouri, 23.
    Pacific, 23.

  Fur trade, 18.


  Gali, Francisco, 50, 54.

  Galiano and Valdes, 19.
    See Sutil and Mexicano.

  Gallatin, Mr., his doctrine of discovery, 109.
    Letter to Mr. Astor, 194.
    His counter-statement in 1826, 208.

  George, Fort, 143.

  Georgia, New, 15.

  Gray, Captain, first explored the mouth of the Columbia River, 62.
    Crosses the bar, 101.
    Extent of his researches, 108.


  Hakluyt, Collection of Voyages, 27.

  Hanna, Captain, 77.

  Hanover, New, 15.

  Hearne, journey of, 58.

  Heceta, voyage of, 56.
    Inlet of, 57, 94.
    Discovery of the Columbia River, 95, 243.

  Hennepin, Father, 157.

  Henry, Mr., established a trading post on the Lewis River, 23, 236.

  High lands, territorial limits, 196.

  Horn, Cape, discovered, 54.

  Hudson's Bay Company, 20.
    Title, 125.
    Territory, 213.
    Boundaries, 147.

  Humboldt, Alexander von, 46, 233.


  Iberville, D', 155.

  Illinois, the, annexed to Louisiana, 156.
    Nation of, 210.

  Ingraham, Joseph, pilot of the Columbia, 81.


  Jefferson, President, letter on Louisiana, 146, 160.

  Jefferys' America, 154, 161, 210.

  Jessup, General, 179.

  Jesuit missions, 54.

  Johnson, Dr., Life of Sir F. Drake, 46.

  Jurisdiction, maritime, 184, 173.


  Kerlet's memoir on Louisiana, 164.

  Kendrick, Capt., 63, 81.

  King, Capt. James, first suggests a trade in furs with north-west coast of America, 18, 60.

  King George's Sound Company, 76.

  Kluber, Droit des Gens, 112, 117.

  Kooskooskee River, 22.


  Lake of the Woods, 145.
    Rainy, 149.
    Red, 149.
    Travers, 149.
    Abbitibbe, 149.

  Law, international rules of, at Treaty of Washington, 172.

  Lewis and Clarke's expedition, 22.
    Encampment on south bank of River Columbia, 235.

  Lewis, or Snake River, 22.

  Liberties distinct from rights, 137.

  Lorenzo, Bay of San, 55, 59.

  Louisiana, limits of Crozat's Grant, 155.
    Jefferys' America, 154, 210.
    Declaration of France in 1761, 212.
    Cession of, 147.
    Western boundaries, 158.
    Sold to the United States, 157.
    Extent of, 210, 212.


  Mackenzie, Alexander, first crosses the Rocky Mountains, 19.

  Maldonado, pretended voyage, 65.
    The author a Fleming, 66.

  Maps, of Ortelius and Hondius, 45, 74.
    Of the 16th and 17th century, 74.
    Difficulty from incorrect, 150.
    Questionable authority of, 161.
    Melish's, 166.
    Inaccuracy of, 212.

  Maquilla, or Maquinna, 79.

  Marchand's Voyage, 47.

  Martens, Droit des Gens, 117.

  Martinez at Nootka, 80.

  Matagorda Bay, 155.

  Meares, 61.
    Sailed in the Nootka, 77.
    In the Felice 78, 95.
    Memorial to Parliament, 82.
    Log book, 97.

  Mendocino, Cape, 27.
    Furthermost known land, 45.

  Mississippi, sources of the, 146.
    Company, 156.
    Discovered by Hernando de Soto, 153.
    Discovered by Spain, 153, 197.
    Explored by British subjects, 154.
    Free navigation of, 195.

  Missouri Fur Company, first establishment of citizens of United States on the west of the Rocky Mountains, 23.

  Monroe, President, declaration of, 178.

  Monson's, Sir W., Naval Tracts, 44.

  Mountains, Snowy, 165.

  Multnomah River, 166.
    Incorrectly laid down, 166.
    Proposed as a boundary by Spain, in 1819, 165, 170.
    Sources, 190.


  Natchitoches, 164.

  National flag, 226.
    Protection of, 193.
    Mercantile, 227.
    Sovereign, 228.
    Mr. Gallatin's letter, 230.
    Dr. Channing's pamphlet, 228.

  National ship, Mr. Rush's view, 184.
    Mr. Buchanan's view, 226.

  Negotiations in 1818, 144.

  New France, extent westwardly, 161, 210.

  New Mexico, extent of, 171.

  Nootka Sound, 73.
    Discovery of, 116.
    British colours hoisted at, 79.
    Delivered up to the British, 92.
    Controversy, 119.
    British settlement, 203.

  Nootka Sound Convention. See Escurial.
    Mr. Pitt's view, 247.

  North-west Company established, 20.
    Their first settlement west of the Rocky Mountains, 20.


  Occupation, title by, 111.
    Distinct from occupancy, 114.

  Ohio River, 159.

  Okanegan River, 24.

  Onis, Don Louis de, 164.

  Oregon, or Oregan River, so called by Carver, 16.

  Oregon Territory, extent of, 17.
    Pretensions of the United States in 1818, 142.
    First notice of claim, 147.


  Pacific Fur Company, 23.
    Dissolution of, 25, 192.
    Not chartered, 192.

  Panuco, the northernmost settlement of Spain on the Gulf of Mexico, 154, 176.

  Partition, rule of, 261.

  Patagonians, 39.

  Perez, Juan, voyage, 55, 116.
    Entrada de, 55.

  Perouse, La, 60.

  Pichilingue Bay, 73.

  Poletica, Chevalier de, 179.

  Pope Alexander VI., his bull, 27.

  Pre-emption, right of, 177.

  Prescription, title of, 124.

  President Polk's Message, 255.

  Pretty, Francis, 28.
    Not the author of the Famous Voyage, 32.

  Purchas, Pilgrims of, 34.


  Racoon, sloop of war, 25, 239.

  Rio Bravo del Norte, 171.

  Rivers, appendages to territory, 173, 195.
    Common use of, 126, 176, 195.
    Mr. Wheaton on, 195.

  Rocky Mountains, 14.

  Rolls Court, 131.

  Rush, Mr., 180, 241, 251, 253.

  Russia, establishments on north-west coast of America, 60, 262.
   Claims on north-west coast, 120.

  Russian American Company, in 1799, 200.


  Salle, De la, 154, 197.

  Santa Fé, 170.

  Sea coast, discovery of, 172.
    Possession of, 196.

  Servitudes, permanent, 134.

  Settlement, title by, 122.
    Jurisdiction of, 172.
    Conterminous, 175.
    Not mere trading stations, 202.
    Not factories, 206.
    Intermixed, 218.
    Priority of, 221.

  Sierra Verde, 13, 166.

  Silva, Nuño da, his narrative, 28.

  Schoell's Traités, 90, 92, 147.

  Soto, Hernando de, discovered the Mississippi, 171.

  South Carolina, laws of, 227.

  Spain, claims to the north-west coast of America, 168.

  Stow, the Annalist, 43.

  Stowell, Lord, on rivers, 106.
    On discoveries, 121, 200.

  Sutil y Mexicana, voyage of, 48.


  Tacoutche-Tesse River, held by Lewis and Clarke to be the Columbia, 19, 232.

  Tchiricoff's voyage, 54.

  Territory in use, 221.

  Texas, boundaries of, 171.

  Thalweg, 176.

  Thomson, Mr. David, the astronomer of the North-west Company, descends the north branch of the Columbia River, 21, 24, 171, 233.
    Determines the latitude of the sources of the Mississippi, 146.

  Tipping, Captain, 61, 70.

  Title by Occupation, 111.
    Discovery, 115.
    Sea coast, 172.
    Settlement, 124.
    Prescription, 124.
    Convention, 129.

  Tonquin, ship, destroyed by the Indians, 24.

  Treaty of Utrecht, 84, 144, 148.
    Paris, of 1803, 147.
    Paris, of 1763, 149.
    Ryswick, 157.
    Washington, 173.
    S. Ildefonso, 157, 162.
    The Escurial, 86, 201.
    Ghent, 141.
    Family Compact, 86, 92.
    Paris, of 1783, 133, 146, 151.
    Of 1794, 146.

  Treaties terminable by war, 135.
    Sometimes contain acknowledgments of title, 136.


  Ukase of Russia respecting the north-west coast, 178.

  Ulloa, Francisco de, 26, 54, 72.

  United States, the President's plan as to the Pacific Ocean, 169.

  Use, innocent, 128.

  Usucaption, title by, 124.

  Utrecht, Treaty of, 211.
    Commissioners under, 148.


  Vancouver, Capt., 18.
    Instructions, 98.
    Names C. Orford, 98.
    Observes Heceta's River, 100.
    Vindicated against Mr. Greenhow's charges, 103, 107.

  Vattel on Occupation, 173.
    On Discovery, 193.
    On Prescription, 125.

  Vicinitas of the Roman law, 126.

  Viscaino, Sebastian, 54.


  Wabash River, or Ouabache, 156.

  Washington, Treaty of, cession under, 172, 180.
    Object of Spanish concessions, 170, 237.

  Wheaton on Discovery, 118.

  Wilkes', Capt., expedition, 74.

  Willamette, settlement on the, 256, 259.

  Webster, Daniel, 264.

  Wolffii Jus Gentium, 112.
    Institutions du Droit, 113, 121.

  Woods, Lake of the, 145.






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