of the U. States have generally been recommended by the President. A
very moderate appropriation will be sufficient to improve the most
difficult portions of the road: and block-houses or other temporary
works, erected in proper places and at convenient distances, and
garrisoned by a portion of the intended additional force, will protect
and facilitate the progress of the emigrants. However uninviting may be
the vast extent of prairies, destitute of timber, which intervene
between the western boundary of the State of Missouri and the country
bordering on the Stony Mountains, it seems impossible that there should
not be found some more favored spots where settlements may be formed. If
these were selected for military posts, and donations of land were made
to actual settlers in their vicinity, a series of villages, though
probably not a continuity of settlements, would soon arise through the
whole length of the road. The most important place, that which is most
wanted, either as a place of rest for the emigrants, or for military
purposes, is one in the immediate vicinity of the Stony Mountains.
Reports speak favorably of the fertility of the soil in some of the
valleys of the upper waters, within our limits--of Bear's river, of the
Rio Colorado, and of some of the northern branches of the river Platte.
There, also, the seat of justice might be placed of the new territory,
whose courts should have superior jurisdiction over Oregon.
The measures which the United States have a right to carry into effect
within the territory of Oregon must now be considered.
The only positive condition of the convention is, that the territory in
question shall, together with its harbors, bays, and creeks, and the
navigation of all rivers within the same, be free and open to vessels,
citizens, and subjects of the two Powers.
For the construction put on this article by Great Britain, it is
necessary to recur again to the statement of her claim, as given by
herself, and to her own acts subsequent to the convention.
The acts of England, subsequent to the convention of 1818, are to be
found in the various charters of the Hudson Bay Company (observing that
some of their most important provisions, though of a much earlier date,
stand unrepealed), and in the act of Parliament of the year 1821, which
confirms and extends a prior one of the year 1803. It must also be
recollected that, by grants or acts subsequent to the convention, the
ancient Hudson Bay Company and the Northwest Company of Montreal have
been united together, preserving the name of Hudson Bay Company.
This Company was and remains a body corporate and politic, with
provisions for the election of a Governor and other officers, who direct
its business; and amongst other powers, the Company is empowered to
build fortifications for the defence of its possessions, as well as to
make war or peace with all nations or people, not Christian, inhabiting
their territories, which now embrace the entire Oregon. By the act of
Parliament of 1821, the jurisdiction of the courts of Upper Canada is
extended, in all civil and criminal cases, to the Oregon territory;
provision is made for the appointment of justices of the peace within
the said territory, with a limited jurisdiction, and power to act as
Commissioners in certain cases, and to convey offenders to Upper Canada.
It must also be observed that, although the Company is forbidden to
claim any exclusive trade with the Indians, to the prejudice or
exclusion of any citizen of the United States who may be engaged in the
same trade, yet the jurisdiction above mentioned is, by the letter of
the act, extended to any persons whatsoever residing or being within the
said territory. The British Plenipotentiaries did, however, explicitly
declare, in the course of the negotiations of 1826-1827, that the act
had no other object but the maintenance of order amongst British
subjects, and had never been intended to apply to citizens of the United
States.
It is perfectly clear that, since it has been fully admitted that the
United States possess the same rights over the territory as Great
Britain, they are fully authorized, under the convention, to enjoy all
the rights which Great Britain claims for herself, and to exercise that
jurisdiction which she has assumed as being consistent with the
convention.
The citizens of the United States have, therefore, at this time a full
and acknowledged right to navigate the waters of the Oregon territory,
_to settle in and over any part of it_, and freely to trade with the
inhabitants and occupiers of the same. And the Government of the United
States is likewise fully authorized to incorporate any company or
association of men for the purpose of trading or of occupying and
settling the country; to extend the jurisdiction of the courts of any of
its territories lying within its acknowledged limits, in all civil and
criminal cases, to the territory aforesaid; to appoint within the same
justices of the peace and such other officers as may be necessary for
carrying the jurisdiction into effect; and also to make war and peace
with the Indian inhabitants of the territory, including the incidental
power to appoint agents for that purpose.
On the other hand, it seems to be understood that, so long as the
convention remains in force, neither Government shall lay duties in the
Territory on tonnage, merchandise, or commerce; nor exercise exclusive
jurisdiction over any portion of it; and that the citizens and subjects
of the two Powers, residing in or removing to the territory, shall be
amenable only to the jurisdiction of their own country respectively.
It has been contended by the British Government that the establishment
of any military post, or the introduction of any regular force under a
national flag, by either Power, would be an act of exclusive
sovereignty, which could not be permitted to either whilst the
sovereignty remained in abeyance. Under existing circumstances, it is
believed that such an act would be highly dangerous, and prove
unfavorable to the United States.
But the establishment by the United States of a Territorial Government
over Oregon is also objected to on the same principle. The want of such
government appears to be the only serious inconvenience attending a
continuance of the convention, and requires special consideration.
The United States have the same right as Great Britain, and are equally
bound, to protect their citizens residing in the Oregon territory, in
the exercise of all the rights secured to them by the convention. It has
been fully admitted that these rights embrace the right to settle in and
over any part of the territory, and that they are to be, in all cases
whatever, amenable only to the jurisdiction of their own country. The
subjects of Great Britain, who are not in the employ of the Hudson Bay
Company, are forbidden to trade with the natives; and the company does
in fact control and govern all the British subjects residing in the
territory. This gives a strong guaranty against the violation, by rash
individuals, of the rights of the citizens of the United States. Should
any of them, however, be disturbed in the exercise of their legitimate
rights, and the company should be unable or unwilling to relieve and
indemnify them, the United States would be justly entitled to appeal to
the British Government for the redress of a violation of rights secured
by the convention; for the British Government has preserved a control
over the Hudson Bay Company, and does in fact, through it, govern the
British subjects who reside in the territory.
The United States are placed, in that respect, in a very different
situation. It is not believed that the General Government is authorized
to incorporate, as a political body, a commercial company, with such
powers as would give it an efficient control over the private citizens
residing in the territory. Such delegation of powers, either by any of
the States or by Congress, is wholly inconsistent with our institutions.
The United States may indeed give to their citizens in Oregon a regular
and complete judiciary system; and they may also extend to them, as the
British Government has done on its part, the laws of an adjacent
territory. But an executive local power is wanted in this case, as it is
everywhere else, under any form of government whatever, to cause the
laws to be executed, and to have that general control which is now
exercised, through the Hudson Bay Company, by the British Government.
There are, besides, various acts of a public though local nature, such
as opening roads, making bridges, erecting block-houses for protection
against the natives, providing for the destitute, &c., all which are
performed by the Hudson Bay Company, and cannot be accomplished by
insulated individuals, bound by no legal association or government.
Whether any measures may be devised, other than a territorial
government, that will be sufficient for the purpose intended; whether
all the American citizens residing in Oregon might not be incorporated
and made a body politic, with powers equivalent to those vested in the
Hudson Bay Company, and with the reservation by the General Government
of a check or control analogous to that reserved by the Government of
Great Britain, are questions worthy of serious consideration. But Great
Britain has the same interest as the United States to prevent collision
during the continuance of the convention; and it is believed that, if
negotiations should be renewed, with an equal and sincere desire on both
sides to preserve friendly relations, there would be no difficulty at
this time in coming to an understanding on the subject. It would seem
sufficient that this should be accompanied with provisions, preventing
the possibility of the powers exercised by the United States being ever
applied to British subjects, and with an explicit declaration that these
powers should never be construed as an admission by Great Britain of any
claim of the United States to exclusive sovereignty.
There is another important subject which has not, it is believed, ever
been discussed by the two Powers. This is the claim to the ownership of
the places settled and improved under the convention. It seems to me
that, on the principles of both natural and international law, these
rights, to a defined extent, should be respected by each Power
respectively, whose sovereignty over the portion of the territory in
which such improved settlements may be situated will ultimately be
recognized. It appears also that the United States may, in conformity
with the convention, and without affecting in any shape the claims
advanced by Great Britain, pass a law declaring that they abandon or
grant without warranty, to such of their citizens as shall have made
actual and bonâ fide settlements in any part of Oregon, under the
convention, all the rights of and claims to the ownership of the soil,
on which such settlements shall have been made, which the United States
may now or hereafter claim or acquire: limiting and defining the extent
of the grant in the same manner as would be done if such grant was
absolute; and promising that the title should be confirmed, in case and
whenever the sovereignty of the United States was recognized or asserted
and maintained.
The prolongation, in 1827, of the convention of 1818, was evidently
intended as a temporary measure, since it was made revocable at the will
of either party. The plenipotentiaries of the two Powers had been unable
to agree on the terms of a definitive arrangement, or even in defining
with precision the conditions on which the convention of 1818 might be
continued for a determinate period. It will be seen, by reference to the
protocols and correspondence, that, although it was generally admitted
that neither party ought during such continuance to exercise any
exclusive sovereignty over the territory, the American Plenipotentiary
declined to agree to any convention containing an express provision to
that effect, or accompanied by the insertion in the protocol of a
declaration for the same purpose by the British Plenipotentiaries. The
reason was not only because an exclusive right over Astoria and its
dependencies was claimed by the United States, but principally because
it was anticipated that, in order to have in fact an authority equal to
that exercised by the Hudson Bay Company, it would become necessary for
the United States to perform acts which the British Government might
contend to be forbidden by such express provision or declaration. The
consequence was, that the convention recognizes some certain rights, and
imposes no positive restrictions but only such, as may be supposed to be
implied in the clause which declares, that nothing contained in it
should be construed to impair or affect the claims of either party. The
probability that it might become necessary for the United States to
establish a territory or some sort of government over their own citizens
was explicitly avowed; the deficiencies of the renewed convention of
1827, and the inconveniences which might ensue, were fully understood;
and the continuance of that of 1818, made revokable at will, was agreed
on, with the hope that the two Powers would embrace an early
opportunity, if not to make a definitive arrangement, at least to
substitute for the convention another, defining with precision the acts
which both parties should be allowed or forbidden to perform so long as
the sovereignty remained in abeyance.
The inconveniences alluded to have been fairly stated in this paper, and
some of the means by which they may be avoided have been suggested. It
is not, therefore, on account of the intrinsic value of the convention
that its abrogation is objectionable and dangerous. It is because
nothing is substituted in its place; it is because, if the two Powers
are not yet prepared to make a definitive agreement, it becomes the duty
of both Governments, instead of breaking the only barrier which still
preserves peace, to substitute for the existing convention one adapted
to the present state of things, and which shall prevent collisions until
the question of sovereignty shall have been settled. The inconveniences
which were only anticipated have become tangible, from the time when
American citizens, whom the United States are bound to protect, began to
make settlements in the territory of Oregon. The sudden transition, from
an agreement however defective to a promiscuous occupancy, without any
provisions whatever that may prevent collisions, is highly dangerous.
When this is accompanied by an avowed determination on the part of the
United States to assume that exclusive sovereignty which Great Britain
has positively declared she would resist, War becomes inevitable.
NUMBER V.
It may not be possible to calculate, with any degree of certainty, the
number of citizens of the United States who, aided by these various
measures, will, within any given period, remove to the territory beyond
the Stony Mountains. It is certain that this number will annually
increase, and keep pace with the rapid increase of the population of the
Western States. It cannot be doubted that ultimately, and at no very
distant time, they will have possession of all that is worth being
occupied in the territory. On what principle, then, will the right of
sovereignty be decided?
It may, however, be asked whether, if this be the inevitable consequence
of the continuance of the convention, England will not herself give
notice that it shall be abrogated. It might be sufficient to answer that
we must wait till that notice shall have been given, and the subsequent
measures which England means to adopt shall have been made known to us,
before we assume rashly a hostile position. The United States may govern
themselves; although they may irritate Great Britain, they cannot
control the acts of her Government. The British Government will do
whatever it may think proper; but for the consequences that may ensue it
will be alone responsible. Should the abrogation of the convention on
her part be followed by aggressive measures; should she assume exclusive
possession over Oregon or any part of it, as it is now proposed that the
United States should do, America will then be placed in a defensive
position; the war, if any should ensue, will be one unprovoked by her, a
war purely of defence, which will be not only sustained, but approved
by the unanimous voice of the nation. We may, however, be permitted to
examine what motive could impel England, what interest she might have,
either in annulling the convention or in adopting aggressive measures.
When it is recommended that the United States should give notice of the
abrogation of the convention, it is with the avowed object of adopting
measures forbidden by the convention, and which Great Britain has
uniformly declared she would resist. But, according to the view of the
subject uniformly taken by her, from the first time she asserted the
rights she claims to this day, the simple abrogation of her convention
with the United States will produce no effect whatever on the rights,
relations, and position of the two Powers. Great Britain, from the date
at least of Cook's third voyage, and prior to the Nootka convention, did
deny the exclusive claim of Spain, and assert that her subjects had, in
common with those of other States, the right freely to trade with the
natives, and to settle in any part of the Northwestern coast of America,
not already occupied by the subjects of Spain. The Nootka convention was
nothing more than the acquiescence, on the part of Spain, in the claims
thus asserted by Great Britain, leaving the sovereignty in abeyance. And
the convention between the United States and Great Britain is nothing
more nor less than a temporary recognition of the same principle, so far
as the two parties were concerned. England had, prior to that
convention, fully admitted that the United States possessed the same
rights as were claimed by her. The abrogation of the convention by her
will leave those rights precisely in the same situation as they now
stand, and as they stood prior to the convention. It cannot therefore be
perceived what possible benefit could accrue to Great Britain from her
abrogation of that instrument; unless, discarding all her former
declarations, denying all that she has asserted for more than sixty
years, retracting her admission of the equal rights of the United States
to trade, to occupy, and to make settlements in any part of the country,
she should, without cause or pretext, assume, as is now threatened on
the part of the United States, exclusive sovereignty over the whole or
part of the territory. It may be permitted to believe that the British
Government entertains no such intention.
It may also be observed that England has heretofore evinced no
disposition whatever to colonize the territory in question. She has,
indeed, declared most explicitly her determination to protect the
British interests that had been created by British enterprise and
capital in that quarter. But, by giving a monopoly of the fur trade to
the Hudson Bay Company, she has virtually arrested private efforts on
the part of British subjects. Her Government has been in every other
respect altogether inactive, and apparently careless about the ultimate
fate of Oregon. The country has been open to her enterprise at least
fifty years; and there are no other British settlements or interests
within its limits than those vested in, or connected with the Hudson Bay
Company. Whether the British Government will hereafter make any effort
towards that object cannot be known; but as long as this right to
colonize Oregon shall remain common to both Powers, the United States
have nothing to apprehend from the competition.
The negotiations on that subject between the two Governments have been
carried on, on both sides, with perfect candor. The views and intentions
of both parties were mutually communicated without reserve. The
conviction on the part of America that the country must ultimately be
occupied and settled by her agricultural emigrants, was used as an
argument why, in case of a division of the territory, the greater share
should be allotted to the United States. The following quotation, from
the American statement of the case of December, 1826, proves that this
expectation was fairly avowed at the time:
"If the present state of occupancy is urged on the part of Great
Britain, the probability of the manner in which the territory west
of the Rocky Mountains must be settled belongs also essentially to
the subject. Under whatever nominal sovereignty that country may be
placed, and whatever its ultimate destinies may be, it is nearly
reduced to a certainty that it will be almost exclusively peopled
by the surplus population of the United States. The distance from
Great Britain, and the expense incident to emigration, forbid the
expectation of any being practicable from that quarter but on a
comparatively small scale. Allowing the rate of increase to be the
same in the United States and in the North American British
possessions, the difference in the actual population of both is
such that the progressive rate which would, within forty years, add
three millions to these, would within the same time give a positive
increase of more than twenty millions to the United States. And if
circumstances, arising from localities and habits, have given
superior facilities to British subjects of extending their commerce
with the natives, and to that expansion which has the appearance,
and the appearance only, of occupancy, the slower but sure progress
and extension of an agricultural population will be regulated by
distance, by natural obstacles, and by its own amount."
There was no exaggeration in that comparative view; the superiority of
the progressive increase of population in the United States was, on the
contrary, underrated. The essential difference is, that migration from
the United States to Oregon is the result of purely natural causes,
whilst England, in order to colonize that country, must resort to
artificial means. The number of American emigrants may not, during the
first next ensuing years, be as great as seems to be anticipated. It
will at first be limited by the amount of provisions with which the
earlier settlers can supply them during the first year, and till they
can raise a crop themselves; and the rapidity with which a new country
may be settled is also lessened where maize cannot be profitably
cultivated.
Whether more or less prompt, the result is nevertheless indubitable. The
snowball sooner or later becomes an avalanche: where the cultivator of
the soil has once made a permanent establishment game and hunters
disappear; within a few years the fur trade will have died its natural
death, and no vestige shall remain, at least south of Fuca's Straits, of
that temporary occupancy, of those vested British interests, which the
British Government is now bound to protect. When the whole territory
shall have thus fallen in the possession of an agricultural industrious
population, the question recurs, by what principle will then the right
of sovereignty, all along kept in abeyance, be determined?
The answer is obvious. In conformity with natural law, with that right
of occupancy for which Great Britain has always contended, the occupiers
of the land, the inhabitants of the country, from whatever quarter they
may have come, will be of right as well as in fact the sole legitimate
sovereigns of Oregon. Whenever sufficiently numerous, they will decide
whether it suits them best to be an independent nation or an integral
part of our great Republic. There cannot be the slightest apprehension
that they will choose to become a dependent colony; for they will be the
most powerful nation bordering on the American shores of the Pacific,
and will not stand in need of protection against either their Russian or
Mexican neighbors. Viewed as an abstract proposition, Mr. Jefferson's
opinion appears correct, that it will be best for both the Atlantic and
the Pacific American nations, whilst entertaining the most friendly
relations, to remain independent rather than to be united under the same
Government. But this conclusion is premature; and the decision must be
left to posterity.
It has been attempted in these papers to prove--