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 deg. 45' N. L.--Clarke's River.--Source in 46 deg.
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 deg. to at least as high up as 51 deg.
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 deg. north, and by Clarke's River to a point as high up as 51 deg., 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 deg. 45'
north latitude, 115 deg. 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 deg. 45'
N. L.
In respect to Clarke's River, the map of Lewis and Clarke places the
highest source of it in about 45 deg. 30', whilst Commander Wilkes' map
determines it to be in about 46 deg. 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 deg. 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., Sec. 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., Sec. 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, Traites, 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., Sec. 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 deg. 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 deg. 20' to 49 deg., and
the discoverer of the Salmon River, which rises in about 53 deg., and, after
pursuing a northward course, empties itself into the sea a little below
54 deg., 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 deg. 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 deg. and
49 deg. (State Papers, 1825-26, p. 500.) Fleurieu, the French hydrographer,
considers these numbers to be erroneous, and that 58 deg. and 59 deg. 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 deg.
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 deg. north lat., in virtue of the discovery of it by Russian
navigators, and authorised them to extend their discoveries to the south
of 55 deg., 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," _etablissement_ 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 _etablissemens_ 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
etablissemens] 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 commercans etablis
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 _etablissement_, 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 differens
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' Traites, 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.