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 Jose 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 charge-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 Traites, 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 charge-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 Abregee des Traites de Paix: "En consequence il fut signe le 28
Octobre, au palais de l'Escurial, une convention par laquelle la question
litigieuse fut entierement decidee 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 Daedalus, 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 Senor 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 Abregee des Traites de Paix, t. i., ch. xxiv., refers, when he
writes,--"L'execution de la Convention du 28 Octobre 1790, eprouva, du
reste, des difficultes qui la retarderent jusqu'en 1795. Elles furent
terminees le 23 Mars de cette annee, sur les lieux memes, par le brigadier
Espagnol Alava, et le lieutenant Anglais Poara, (Pierce?) qui echangerent
des declarations dans le golfe de Nootka meme. Apres que le fort Espagnol
fut rase, les Espagnols s'embarquerent, et le pavillon Anglais y fut
plante 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
Frederic-Guillaume II., Roi de Prusse, par le Comte de Segur;--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
Espana, que el Exmo Senor Virey Conde de Revillagigedo dio a su sucesor el
Exmo Senor Marques de Branciforte, en el ano 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'Oregon," tom. ii., p. 145, further states, that Lieutenant
Pierce passed through Mexico. "Par suite de quelques fausses
interpretations du traite de 28 Oct. 1790, les Espagnols ne remirent point
immediatement Nootka aux Anglais, et ce ne fut qu'en Mars 1795, que le
commandant Espagnol opera cette cession entre les mains du Lieutenant
Pierce, de l'infanterie de marine Anglaise, venu tout expres de Londres
par le Mexique, pour hater l'execution du traite de l'Escurial."