6^
^V. - .o.
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
.....2.0
12.2
liliiiS
1.25 1.4
1^-*
■9 6" —
►
V]
V)
^>
^
7
-(^
Photographic
Sciences
Corporation
«■
23 WIST MAIN STREET
WEBSTER, N.Y. 14SB0
(716) S73-4S03
^
'^'
"^
•*' V^?*"
4f^
'^
CIHM/ICMH
Microfiche
Series.
CIHM/ICMH
Collection de
microfiches.
Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques
Technical and Bibliographic Notes/Notes techniques et bibliographiques
The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checked below.
D
D
D
D
D
D
D
Coloured covers/
Couverture de couleur
I I Covers damaged/
Couverture endommagde
Covers restored and/or laminated/
Couverture restaurde et/ou pellicul6e
I I Cover title missing/
Le titre de couverture manque
I I Coloured maps/
Cartes g^ographiques en couleur
Coloured ink (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bleue ou noire)
I I Coloured plates and/or illustrations/
Planches et/ou illustrations en couleur
Bound with other material/
Relid avec d'autres documents
Tighi binding may cause shadows or distortion
along interior margin/
La re Mure serr6e peut causer de I'ombre ou de la
distortion le long de la marge intdrieure
Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
li se peut que certaines pages blanches ajout^es
lors d'une restauration apparaissent dani) le texte,
mais, lorsque cela 6tait possible, ces pages n'ont
pas 6t6 filmdes.
Additional comments:/
Commentaires suppl^mentaires;
L'Institut a microfilmd le meilleur exemplaire
qu'il lui a 6t6 possible de se procurer. Les details
de cet exemplaire qui sont peut-dtre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mdthode normale de filmage
sont indiqu6s ci-dessous.
□ Coloured pages/
Pages de couleur
n
■J
u
v/
n
n
Pages damaged/
Pages endommag^es
Pagbs restored and/or laminated/
Pages restaurdes et/ou peliiculdes
Pages discoloured, stained or foxed/
Pages d^colordes, tachetdes ou piqudes
Pages detached/
Pages ddtachdes
Showthrough/
Transparence
Quality of print varies/
Qualitd in^gale de I'impression
Includes supplementary material/
Comprend du mat6riel suppldmentaire
Only edition available/
Seule Edition disponible
Pages wholly or partially obscured by errata
slips, tissues, etc., have been refilmed to
ensure the best possible image/
Les pages totalemsnt ou partiellement
obscurcies par un feuillAt d'errata, une pelure,
etc., ont dt6 film^es h nouveau de fa^on d
obtenir la meilleure image possible.
This item is filmed at the reduction ratio checked below/
Ce document est film* au taux de reduction indiqu6 ci-dessout
10X 14X 18X 22X
26X
30X
j
i
/
12X
16X
20X 24X 28X 32X
aire
details
ues du
: modifier
ger une
< filmage
The copy filmed here has been reproduced thanks
to the generosity of:
Library of the Public
Archives of Canada
The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.
L'exemplaire film6 fut reproduit grflce d la
g6n6rosit6 de:
La bibliothdque des Archives
publiques du Canada
Les images suivantes ont 6t6 reproduites avec le
plus grand soin, compte tenu de la condition at
de la nettetd de l'exemplaire filmd, et en
conformity avec les conditions du contrat de
filmage.
i6es
Original copies in printed paper covers are filmed
beginning with the front cover and ending on
the last page with a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with a printed
or illustrated impression.
Les exemplaires originaux dont la couverture en
papier est imprim6e sont filmds en commen^ant
par le premier plat et en terminant soit par la
dernidre page qui comporte une empreinte
d'impression ou d'illustration, soit par le socond
plat, selon le cas. Tous les autres exemplaires
originaux sont filmis en commen9ant par la
premidre page qui comporte une empreinte
d'impression ou d'illustration et en terminant par
la derniire page qui comporte une telle
empreinte.
The last recorded frame on each microfiche
shall contain the symbol -^(meaning "CON-
TINUED"), or the symbol V (meaning "END"),
whichever applies.
Un des symboles suivants apparattra sur la
dernidre image de cheque microfiche, selon le
cas: le symbole —^ signifie "A SUIVRE", le
symbols V signifie "FIN ".
ire
IVIaps, plates, charts, etc., may be filmed at
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in the upper left hand corner, left to
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:
Les cartes, planches, tableaux, etc., peuvent dtre
film6s d des taux de reduction diffdrents.
Lorsque le document est trop grand pour dtrb
reproduit en un seul cliche, (I est film6 A partir
de I'angle sup^rieur gauche, de gauche d droite,
et de haut en bas, en prenant le nombre
d'images ndcessaire. Les diagrammes suivants
iilustrent la m6thode.
ly errata
9d to
nt
ne pelure,
ipon d
1
2
3
32X
1
2
3
4
5
6
(
T]
BA
s
THE
OREGON QUESTION;
OR, A STATEMENT OF
THK BRITISH CLAIMS TO THE OREGON TERRITORY,
IN OPPOSITION TO
THE PRETENSIONS OF THE GOVERNMENT
OF
THE UNITED STATES OF AMERICA.
By THOMAS FALCONER, Esq.,
BARRISTER y.T LAW OF LINCOLN'S INN, MEMBER OF THE ROYAL
GEOGRAPHICAL SOCIETY, ETC.
LONDON:
SAMUEL CLARKE, 13 PALL MALL EAST.
1845.
LONDON:
PRINTED BY RETNEU, AND WEIGHT,
LITTLE PULTENEY 8TKEET.
The
to t]
Orej
latel
MIs£
ge8t(
byl
cont
whi(
nate
ordi
Ore
lawj
inca
sole
reje
PREFACE.
The following pages are a reprint of an argument relating
to the pretensions of the American Government to the
Oregon Territory, contained in a small work which I
lately published, entitled, * On the Discovery of the
Mississippi, &c.' Some additions to it have been sug-
gested by a work of a very intemperate character, written
by Mr Farnhara, and largely circulated in America, which
contains statements that I could not have anticipated, and
which it is right to notice. The subject itself, unfortu-
nately, has obtained a new importance through the extra-
ordinary conduct of the House of Representatives at
Washington in passing a Bill for the Occupation of the
Oregon Territory ; a measure which, if it should become
law, the general Government of the United States is
incapacitated to enforce, so long as it shall respect the
solemn obligations of an existing treaty. It may be
rejected by the Senate, and very probably will be, but
there is too much reason to believe that the new Con-
gress, which meets in December next, will entertain it
with more favour, unless the impropriety and injustice
of it shall be more generally understood in America
than at present.
T. R
rUTNRY, MaROII 12, 18},').
H
,\
?"•!
i.V<ru« w« uav -vvuMMj «MV*r« ujMSS
-i
?»
>!*•
Ln.io.if^ M'vi't
:i:iii^^liliili|l!j
m\h
jnillllliyili,
'lo
llll l<KI '»
1»>
lO
/o /c
"^
•sm-
.«4" , '-""^
} *»v*, /.
«•■••■. \
■ A *-^Tiw «.* rf- ■# 1
i''>»"/ "
■ /'fW''^ ■'■■
.„<•■•'■ o ■ /it*'''
■ • 'f "
f --««*« ,;)!«» 3w-
H
':^:
JIP^
;t;
m:x
" i'*d.„
►<'*\../ ■\i^?i:A'i y
^?
>c^
c>'
i;£^
"" I..., v.iy^i*'^ '■<»*•■'
,-«.-■"■■''■ '
.i^u" t^- i l*-**'^ •'k •. \ \ ' ji^' t> F"~-~
•^
liWfil'iil
.'A,/' R>u^lU S. {-.li.lit.U.iti M'Vft
Kuer-.r.l lu- .1 i <• Wjr.
THE
OREGON QUESTION.
The discussions respecting the Oregon Territory involve
an argument on the legal rights of the British government
to . the territory in dispute. They may portend a storm,
and at present there is something unpleasant in them, from
the violence of the language used in America, and the
participation of the chief men of that country in attacks
on the English government. But they may exhaust them-
selves, and there may be a calm for a time. Nevertheless,
the necessity for the settlement of the dispute is urgent,
whether hostility ia intended, or pacific dispositions shall
happily prevail.
The chief works published in America on the subject,
are —
1. The History of Oregon and California, and the
other Territories on the North- West Coast of America.
By Robert Greenhow, Librarian to the Department of
the United States. Boston, 1844. Svo.Pp. 482.
2. History of the Oregon Territory, it bein^ a De-
monstration of the Title of the United States to the same.
By Thomas J. Farnham, New York. 1844. Pp. 80.
3. Report of a Committee of House of Representatives,
of the 28th Congress, to whom was referred the Bill,
No. 21, "to organize a Territorial government in the
Oregon Territory, and for other purposes." March 12,
1844.
So much irrelevant matter is contained in these works,
that the answer to them may be condensed in a few pages.
The reply may, perhaps, be dry enough in being confined
to the material facts of the case, but it is certainly not
advisable to imitate the desultory tactics of the American
disputants.
The foundation of the American claim to the Oregon
Territory depends on the extent of the country known by
i
6
i
the name of Louisiana, at the time that it was purchased
by the American government in 1803, and on the effect of
a treaty made with the government of Spain in 1819.
The first French colony in Louisiana was established
by a distinguished Canadian, named D'Iberville, under the
authority of a commission from Louis XIV, granted to
him for this express purpose, and the country remained
subject to the dominion of France until the year 1762.
By the treaty of Paris, agreed upon in November, 1762,
and signed the 10th of February, 1763, and made between
the governments of England, France, and Spain; the
countries of Nova Scotia, Canada, and Cape Breton,
were ceded to En£^!;ind, pnd the eastern limits of the re-
maining French settlements " were irrevocably fixed by a
line drawn along the middle of the river Mississippi,
from its source to the river Iberville, and from thence by
a line drawn along the middle to this river and the Lakes
Maurepas and Ponchartrain to the sea." The river and
Fort of Mobil'3, and everything which France possessed on
the left bank of the Mississippi being ceded, " except the
town of New Orleans and the island on which it is
situated."
By the 20th article of the same treaty, the government
of Spain ceded to England that portion of North America
<^alled Florida, with Fort St Augustin and the Bay of
Pensacola, and all that it possessed on the continent of
North America to the east or gouth-east of the river Mis-
sissippi.
By a secret treaty made Nov. 3, 176^^ and signed the
same day on which the preliminaries of peace between
Great Britain, France, and Spain, were signed, — the
government of France ceded to that of Spain " all the
country known under the name of Louisiana, as also New
Orleans and the island on which that city is situated " —
that is, so much of Louisiana as had not been agreed to be
transferred by France to Great Britain.
On the 3rd of September, 1783, by the treaty made
between Great Britain and Spain, — East and West Florida
were ceded by Great Britain to the Spanish government,
which thus became again possessed of these its ancient
colonies.
By th6 treaty made on the 3rd of September, 1783,
between Great Britain and the United States of America,
the independence of these states was recognised, and their
noi^h-western, western, and southern boundaries were
thus described: — " By a line through the middle of Lake
Erie until it arrives at the a' Her communication between
that lake and Lake Huron , thence along the middle of
the said water communication into the Lake Huron, thence
through the middle of the said lake to the water communi-
cation between that lake and Lake Superior ; thence through
Lake Superior, northward of the Isles Royal andPhilipeaux,
to the Long Lake ; thence, through the middle of Long Lake
and the water between it and the Lake of the Woods, to the
Lake of the Woods ; thence through the said lake to the most
north-western point thereof; and from thence, on a due west
course, to the River Mississippi j whence, by a line drawn
along the middle of the said Jiiver Mississippi, until it shall
intersect the northernmost part of the 31st degree of north
latitude — south, by a line to be drawn due east from the
determination of the line last mentioned in the latitude 31
degrees north of the equator to the middle of the River
Apalachicola or Catahouche; thence along the middle
thereof to its junction with the Flint River; thence
straight to the head of the St Mary's River, and thence
along the middle of the St Mary's River to the Atlantic
Ocean."
There was one error in this otherwise clearly defined
boundary : — the head waters of the Mississippi River are
south or the Lake of the Woods, and, consequentlv, a line
carried due west from the lake would not touch tne river.
The clear intention of both parties was to terminate the
boundary where this junction was expected to take place —
where, if the Mississippi had continued in a course N. it
would have intersected the line running due west from the
Lake of the Woods. This obvious correction of the mis-
take is adopted in the map lately published in America by
Mr Greennow, in which a dotted lino from the head
waters of the Mississippi to the line running due west of
the Lake of the Woods completes this boundary. But
nothing west or north of this line was granted by Great
Britain to the United States in 1783, and nothing north of
the head waters of the Mississippi was retained by France
under the treaty of 1763.
On October 1, 1800, Louisiana was retroceded by
Spain ti» France " with the same extent that it now has in
8
the hands of Spain, and that it had when France possessed
it, and such as it should be after the treaties subsequently
entered into between Spain and other states." It was an
act of retrocession, but it transferred so much less than
France originally held, as had been shorn from it by the
treaty of 1763, which gave to Great Britain, and through
Great Britain to the United States, nearly the entire
eastern bank of the Mississippi.
In 1803, with the consent of Bonaparte, then First
Consul, Louisiana was sold to the United States for eleven
million of dollars. The purchase included all lands " on
the east side of the Mississippi River [so as to include New
Orleans], not then belonging to the United States, as far as
the great chain of mountains which divide the waters run-
ning into the Pacific and those falling into the Atlantic
Ocean ; and from the said chain of monntains to the
Pacific Ocean, between the territory claimed by Great Bri-
tain on the one side and by Spain on the other."* — (^History
of the Federal Government,' by Alden Bradford, LL.D.,
Editor of the Massachusetts State Papers. Boston, 1840.
P. 130.)— No point was mentioned where the line in the
chain of mountains was to commence, nor where the tract
of land lay, forming a portion of Louisiana, lying between
the territory claimed by Spain and Great Britain. France
had nothing to sell but what constituted Louisiana after
the cession made to Great Britain in 1763. There was,
nevertheless, inserted, in this treaty of sale, a reference to a
perfectly undefined line to the Pacific, having no defined
point of commencement, and referring to territory having
no definable boundaiy either on the north, or the south, or
on the east. But before the treaty for the purchase was
completed. President JeflPerson, in a letter dated August 12,
1803, wrote thus to Mr Breckenridge: — "The boundary
which I deem not admitting question are the high lantfs
on the western side of the Mississippi, inclosing all its
waters — the Missouri, of course — and terminating in the
line drawn from the nortl -western point, from the Lake of
the Woods to the nearest source of the Mississippi, as
lately settled between Great Britain and the United States.
We have some claims to extend on the sea-coast west-
• Mr Grcenhow, in his elaborate work on the Oregon queBtion,
has omittod all notice of this very iinportnut passage.
was an
9
wardly to the Rio Norte or Bravo — and better to go east-
wardly to the Rio Perdido between Mobile and Pensacola,
the ancient boundary of Louisiana," It is evident, there-
fore, that at this time no French title to any line running
bey^>nd the mountains on the west was known to have
existed.
In 1819, Don Louis de Onis was commissioned, on the
part of the government of Spain, to confer with the
government of the United States on the south-western
boundary of Louisiana. The negotiations were terminated
by the treaty called the Florida Treaty, signed at Wash-
ington on the 22nd of February, 1819.* The south-
western boundary of Louisiana had previously been the
Arroyo, midway between Nachitoches and the Adeas, this
having been the dividing line in 1762, before the cession
of Louisiana to Spain. 13y this treaty the boundary west
was fixed to be the River Sabine to the 32nd degree
of latitude ; thence due north to the Rio Roxo or the Red
River of Nachitoches ; thence westward along this river to
the degree longitude 100 west from London {qucere, Green-
wich) and 23 from Washington ; thence due north to the
River Arkansas ; thence to its source in 42° latitude ; or if
the source is north or south of latitude 42°, along a line
♦ In consequence of the omission, on tlie part of the Spanish
government, to ratify this treaty within the time agreed on, I'ro-
sidcnt Munroe, in his message of December 11, HIVJ, asserted some
principles which were entirely forgotten by General Cass and Mr
Wheatson when the ratification ef the late treaty between Great
liritain and France was pending. " The government of Spain had
no justifiable cause for declining to ratify the treaty. A treaty con-
cluded in conformity with instructions is obligatory, in good faith,
in all its stipulations, according to the true intent and meaning of
the p.irties. ivich party is bound to ratify it. If either could set it
aside, without the consent of the other, there would no longer be
any rules applicable to such transaclions between nations. iJy this
])roceeding tlio government of Spain has rendered to the United
States a new and serious injury.' — '* IJy this {)roceeding SpnI.i has
formed n relation between the two countries which will justify any
measures, on the part of the United States, which a strong sense of
injury and a proper regard for the rights and interests of the nation
may dictate. In the course to be pursued these objects should
bo constantly held in view, and have their due weight. Our national
honour must be maintained, and a new and distinguished proof bo
afforded of that regard for justice and moderation which has inva-
riably governed the councils of this free people."
10
due north or south until it meets the parallel of latitude
42° ; and thence along this parallel to the Pacific.
Thus was the undefined line (ante, p. 8) from the Rocky
Mountains to the Pacific inserted in the agreement for the
purchase of Louisiana converted into a defined line.
A sweeping clause was included in the Florida Treaty,
by which the United States ceded to Spain and "re-
nounced for ever" all rights, claims, and pretensions to
territories lying west and south of the described boundary,
and Spain ceded to the United States all lights, claims, and
pretensions to territories east and north ot this boundary.
On this clause «he claim of the United States to the
Oregon Territory chiefly depends.
As the treaty was negotiated in order to carry into
eiFect the transfer of Louisiana, it is material to ascertain
how far to the west this province extended when the sale
of it was made.
The first notice of the western boundary of Louisiana,
of any authority, is in the grant made, September 17, 1712,
by Louis XI v to Crozat. This grant empowered him
" to carry on exclusively the trade in all our territories by
us possessed and bounded by New Mexico, and by those
of the English in Carolina; all the establishments, ports,
harbours, rivers, and especially the port and harbour of
Dauphin Island, formerly called Massacre Island; the
River St Louis, formerly called the Mississippi, from the
sea-shore to the Illinois ; together with the River St Philip,
formerly called the Missouri River, and the St Jerome,
formerly called the Wabash (the Ohio), with all the coun-
tries, territories, lakes inland, and the rivers emptying them-
selves directly or indirectly into that part of the river St
Louis. All the said territories, countries, streams, and
islands, we will to be and remain comprised under the
name of * The Government of Louisiana,' which shall
be dependent on the general govermnent of New France^ and
remain subordinate to it ; and we will, moreover, that all the
territories which we possess on this side of the Illinois be
united, as far as need be, to the general government of
New France, and form a part thereof, reserving to our-
selves 1 3 increase, if we think proper, the extent of the
government of the said country of Louisiana,"
This document defined with tolerable precision the pro-
vince of Louisiana. It was partly bounded on the west by
11
New Mexico ; it did not extend beyond the Rocky Moun-
tains, for the rivers emptying themselves into the Missis-
sippi have their sources on the east side of these mountains,
and it was to reach the Illinois to the north. It was also
declared that the government should be dependent on the
general government of New France — that was, subject to
the superior authority of the Governor of Canada. Some
years subsequently the Illinois was added to Louisiana.
New Mexico bounded it, at least as high as 41 degrees, or
above the source of the Rio del Norte. There was no
strip of land to the west belonging to France, as mentioned
in the purchase of 1803, ** lying between the territory
claimed by Great Britain on the one side and Spain on the
other ;" and Mr Greenhow admits " that we are forced to
regard the boundaries indicated by nature — namely, the
highlands separating the waters of the Mississippi from
those flowing into the Pacific or the Californian Gulf — as
the true western boundaries of Louisiana, ceded to the
United States by France in 1803."— (Greenhow, p. 283.)
The consequence, therefore, is, that the purchase of
Louisiana included so much territory as was bounded on
the north by a line running from the source of the Missis-
sippi due west to the mountains (ante, p. 7); on the west
by the mountains ; on the east by the River Mississippi ;
and on the south by the Gulf of Mexico.
A still more important consequence is, that the title to
the territory claimed by the United States, west of the
mountains — so far as it depends on any alleged Spanish
rights — dates from the year 1819, and is derivable from the
Florida Treaty made with Spain, and not from the pur-
chase of Louisiana. The agreement with France in 1803
professed to give "a line" across some country lyin^ be-
tween the territory claimed by Spain and Great Britain,
which the government of France had no title to interfere
with, and the Florida Treaty, which was made between
Spain and the United States, in order to carry into exe-
cution that made between France and the United State .
defined the northern boundary of Mexico to be a line
running along the 42nd parallel of latitude, from the
mountains to the Pacific, and accompanied it with a ces-
sion of Spanish rights to the north (ante, p. 10). On the
conclusion of this treaty it was contended, on the part of
the United States, that Great Britain had no title to any
12
territory north of that parallel, on the ground that no
other country but Spain had a right to such territory. It is,
consequently, material to ascertain what were the English
claims to the Oregon Territory prior to the year 1819, that
is, to the territory not forming a part of Louisiana in 1803.
The government of Spain during its possession of
Mexico never made any settlement on the western coast
north of Cape Mendocino (lat. 40" 29' N). It was a vacant
territory, subject to the same rules of settlement that had
governed the settlement oi other portions of North Ame-
rica. " Having touched only here and there upon a coast,"
said Queen Elizabeth to the Spanish Ambassador, "and
given names to a few rivers or capes, were such insig^
nificant things as could in no ways entitle them (the
Spaniards) to a propriety farther than in the parts where
they actually settled and continued to inhabit." And the
principle embodied in this speech has been the rule acted
on by nearly every European nation.
The discovery of the coast noitb of Cape Mendocino
was made by Drake, and the ar<^umeiit in support of this
fact has been well stated in the morning Chronicle in these
words : —
" It suits Mr Greenhow's purpose to treat a portion of Sir
Francis Drake's discoveries on the north-west coast of Ame-
rica as extremely fabulous, whilsi he accords credit, even then
somewhat qualified, to such as will not interfere with the
claims of his countrymen. Such a line drawn between one
portion of the deeds of the naval hero and another is, as we
shall see shortly, somewhat disingenuous. It is an important
point in Mr Greenhow's case, however much he may pretend
to undervalue it, to ward off Drake and his companions from
the disputed coast, so far as all latitudes above 43 deg. north
are concerned. From what he states in p. 124, he is not
exactly sure that Drake saw the coast as far north as lat.
43 deg. In spcakin^^ of the first discovery of the Columbia
River by Bodega and Maure/.le, who sailed under the command
of Hcceta, he there says, that, 'Of these coasts, the portion
south of the 43rd degree of latitude had been seen by Ferrelo
in 1543, and po.mbl)/ by Drake in 15/8.' Now all the land
north of lat. 38 deg. seen by Drake in 1578, was unappro-
priated when Drake visited it, and took possession of it, giving
It the name of New Albion, and, as such, it is found on French
and Spanish maps of an old date, the southern boundary of
New Albion lying then many degrees to the southward of what
13
tti IS not
is now the northern limit of Mexico. But it is Mr Green-
how's purpose to prevent New Albion at all hazards from
embracing the Columbia. Drake possibly^ says Mr Green-
how, touched the coast, as far north as lat. 43 deg. Had it
been lat. 42 deg. instead of 43 deg. — the former being the
southern boundary a/'signed since 1819 to the Oregon territory
— he might not have been so ready to throw any doubt upon
that parallel as the extent of Drake's discovery to the north-
ward— for Drake might have ascended as far as the forty-
second parallel, without embracing within the limits of New
Albion one single degree of the territory now claimed by the
United States. Mr Greenhow cares not what force the claims
of Drake as a discoverer may have south of lat. 43 deg., or
rather 42 deg., as any claim which might in that case be
founded u,3on his discovery by the British government would
bring it exclusively in collision with Mexico, but New Albion
not only embraced a considerable portion of territory now in-
cluded within the limits of Mexico, but also extended several
degrees to the northward of the 42nd parallel of latitude ;
at all events, sufficiently so to embrace within the scope of
Drake's discoveries the mouth of the Columbia. This is by
no means a^- unimportant point for us to establish, inasmuch
as it puts beyond a doubt the superiority of our claims in our
after disputes with Spain, and consequently the futility of the
claim which the United States now set up — by virtue of cession
from Spain.
"That Drake didno^ discover the north-west coast as far as
lat. 48 deg., is a proposition based, as Mr Greenhow admits,
on no positive evidence ; yet, on the other hand, says he, the
assertion that he did * is not supported by sufficient evidence,'
and * where originally made, it is accompanied by statements
certainly erroneous, and calculated to destroy the value of the
whole tcptimony.' The erroneousness of these statements we
shall consider by-and-by, after following, in brief detail, the
course of the British discoverer on this — until his day — un-
known coast.
" To do so satisfactorily, we must pay some attention to
dates, and to geographical positions. That Drake had crossed
the 42nd parallel of latitude, by the 3rd of June, 1579, is a
matter admitted on all hands. The controversy turns upon
his movements between this date and the 17th of the same
month, when he sought shelter in a small bay, situated in lat.
38 deg., and where he remained five weeks repairing his vessel
and trafficking with the natives. Of these movements we have
two different accounts, prepared by two members of the expe-
dition, varying from each other in matters really unimportant,
14
but by no means, ir. the general conclusion which they each
tend to establish, contradictory of each other. Mr Greenhow
gives us to understand that a considerable interval of time
elapsed between the publication of these two accounf.s, from
which he insinuates an unfavourable inference in rctgard to
that latest published, owing to the length of time which
elapsed between its appearance and the conclusion of the
voyage — a consideration from which we are inclined to infer
favourably of both accounts, establishing, as it does, the entire
absence of concert or collusion between their respective authors,
whilst all apprehensions of mistake or forgetfulness on the
part of the author of that latest published are removed by the
fact that his account was prepared for publication from notes
taken during the acttial progress of the expedition. That l*lr
Greenhow deems it important to divert Drake from the
Columbia is evident from the anxiety he displays to make it
ap'^ear that, after the 3rd of June, the course of the British
admiral was southward to the bay above named, in lat. 3b deg.
In * The World encompassed by Sir Francis Drake,* one of
the two narratives just alluded to, Fletcher, a preacher
attached to the expedition, tells us that on the 3rd of June they
were in lat. 42 deg., and that on the 5th of the same month
they anchored near the shore in a * bad bay,' in lat. 48 deg.,
but that, being driven from this bay by the violence of the
winds, they ran southward along the coast, until they reached
lat. 38 deg., where they found the harbour in which their
vessel was refitted. Pretty, in his • Famous Voyage of Sir F.
Drake,' states that on the 6th of June the vessel was 'n lat. 43
deg., when it was determined to seek the land. There is certainly
here a slight difference in date?, but far from sufficient to
throw discredit upon the narratives, when we consider the
more important points in which they do not thus conflict.
Pretty does not mention at what particular point land was first
made, but he informs us that when they did make it, finding
no proper harboui., they coasted in a southerly direction until
the 17 th of the same month, when ' it pleased God to send
them into a fair and good bay, within 38 deg. towards the
line.' They both, therefore, agree that land was made about
the 5th, and that it was because a harbour sufficiently good
could not be found when they first approached it^ that thoy ran
to the southward, until they at length found, in lat. 38 deg.,
what they were in quest of, — an available harbour. It appeals,
then, from Fletcher, that the point where they first made land
was in lat. 48 deg., whilst there is nothing in Pretty's account
to contradict this assertion. In disproofi howeve. , of the
assertion that Drake discovered the cobst as far north as the
15
48th deg. of latitude, Mr Greenhow assures us that, * in the
first place, it would be difficult, if noc impossible, for any ves-
sel in two days to pass through six degrees of latitude north-
ward, with *.he wind, as we are assured by both accounts,
blowing constantly and violently from the north and north-
west; and that much confidence cannot be placed on assertions
as to latitude, based on observations made in a vessel on a
stormy sea, with imperfect instruments, and when the atmos-
phere was generally charged with thick fogs.' As to the first
objection, it might be quite true that, under such unfavourable
circumstances; no vessel could traverse six degrees of latitude ;
but it does not necessarily follow that, because the wind was
blowing violently from the north and north-west, Drake's
course must have been ue north, to reach the 48th parallel.
To ensure this, he must have been close upon the land on the
3rd of June, when he was in latitude 42 or 43 degrees — an
improbable conjecture, when we consider that, from the time
when he had lefl the American coast, in latitude 16 degrees,
until the 3rd of June, when it was determined to make land
again, his course had been west and north-west ; so that on that
day, on reaching latitude 43 degrees, he must have been far
to the westward of the coast. His object was to find a pas-
sage to England by a northern route — afraid to attempt the
route by Cape Horn, or the Straits of Magellan, for fear he
should be intercepted by the Spaniards, who he knew were on
the look out for him, to recover the booty he had secured by
the plunder of their towns and shipping. In attempting to
make land, therefore, <^n the 3rd of June, nothing would be
more likely than that he should shape his course to the north-
eFtst, which, with the wind a-beam, if blowing from the north-
v^est, would enable him to make, without much difficulty, from
five to six degrees in the course of two days. There is not,
therefore, the glaring impossibility in the matter which Mr
Greenhow would have us to believe. As to his objection to
the doubtful nature r^f their observations, it would apply as
much to their observcttions on the 3rd as on the 5th of June.
Mr Greenhow, in maintaining that latitude 42 or 43 degrees
was the highest attained by the expedition, and which was
attained from the 3rd to the 6th oi June, throws no doubt
upon the correctness of the observations which ascertained this
— in his estimation — the highest point gained. But between
the observations of the 3rd and those of the 5th, that Columbia
River was included, and this is the only reason that we can
perceive why Mr Greenhow should seek to throw discredit
on the latter, for we are not told that the sea was more stormy,
the instruments more imperfect, or the fogs thicker on the 5th
16
than they were on the 3rd. But wc do not rest our case solely
upon the correctness or the incorrectness of these ohservations
of latitude. There are ther circumstances mentioned in con-
nexion with the expedi. which serve to put the correctness
of these observations in . learest light, whilst these circum-
stances are in turn supported and borne out by them. In the
first place, we are told of the severe cold which the crew en-
countered before Drake finally abandoned the coast. The
description given of the climate Mr Greenhow characterises
as an * intentional untruth.* We should like to know from
Mr Greenhow what purpose the relators could have served, or
wished to serve, in giving a statement of this kind to the world
intentionally untrue. There was no boundary dispute then — there
was no antagonist claim to the territory to be rebutted j they did
not foresee the future importance of the coast, nor the disputes
which would arise concerning it. The future claim of the United
States and the United States themselves were then alike in the
womb of futurity, undreamt of by the most visionary of that day.
They could have no possible motive for deviating from a plain,
straightforward statement of what they saw and what they
expeiienced. Besides, if they exaggerated a little in speaking
of the weather, it does not follow that they were dealing in
wholesale falsehoods, or that their narratives were i7i toto
vitiated by the little extra colouring which they may have
given to their descriptions of the climate. It must be remem-
bered that they had suddenly ascended from the tropics to an
inhospitable latitude, and were, therefore, in a condition to feel
the cold more severely than they would otherwise have done.
This may sufficiently account for their imputing, if they did
BO, exaggerated rigour to the climate. But we are far from
being assured that they did. The writer of this has encoun-
tered a uevere snow storm in the Gulf of St Lawrence, on the
opposite coast of America, and precisely in the same latitude,
on the 3rd day of June, the ropes and sails being at the same
time stiffened wiih ice. MrGreenhow's experience of the genial
latitudes of Washington may render him as incredulous to such
statements as was the King of Siani in regard to the statement
that water sometimes assumed a form in which it could sup-
port an elephant. We do not say that snow and ice are com-
mon occurrences in the Gulf of St Lawrence in the month of
June, nor does it at all follow that they are so on the Pacific
coast between the 43rd and 48th parallels, from the accounts
furnished us by the comrades of Drake ; but it is by no means
so impossible as Mr Greenhow imagines it, that in June, 1679,
the weather on the north-west coast may have been as rigorous
as it is depicted to have been.
17
e accounts
"There is another important statement to be found in these
narratives which must not be overlooked, In Fletcher's
account we are told that the adventurers * searched the coast
diligently, even unto the 48th degree, yet they found not the
land to trend as much as one point in any place towards the
east, but rather running on continually to the north-west, as if
it went directly to meet with Asia.* If anything were want-
ing to prove that Drake and his companions ascended to a
much higher latitude than 43 degrees, it is abundantly fur-
nished in this account of the inclmation of the coast at the
point whence they deemed it advisable to return. Whatever
doubts Mr Greenhow may attempt to throw upon their obser-
vations of latitude, he admits that their observation of the
coast, so far as they state it to trend in no one point to the
east, is perfectly accurate. So it U ; for the direction of the
coast from Cape Mendot;ino to about the 48th degree of lati-
tude is almost due north. If, then, they were competent to
judge of the inclination of the coast at one point, they were
equally so to judge of it in another. The same parties who
state, very correctly, that the land did not trend at all to the
east, state also that they ?t length found it inclining in a north-
westerly direction, as if stretching towards Asia. Mr Green-
how, however, chooses to consider them, in this latter point, as
either again deceived, or as guilty of another * intentional un-
truth ;' and he triumphantly assures us that their 'hole testi-
mony is invalidated, inasmuch as the land nowhf /e inclines to
the north-west between the 40th and 48th degrees, but runs
nearly due north. Very true, Mr Greenhow ; but what do wo
find to be the case just at the 48th degree of north latitude ?
Simply that at this precise point, the western coast of North
America makes a remarkable deviation from its previous
northerly direction, and runs thence in a course as nearly due
west as before it ran due north. This is a circumstance which
could not fail to impress itself upon any one who had seen the
coast at this point. Had Fletcher been drawing on his ima-
gination in making this statement— had he been hazarding a
conjecture, instead of stating a fact which had come under his
observation, he would more likely have given the coast a
north-easterly than a north-westerly direction ; for it was under
the firm conviction that the coast somewhere in these northern
latitudes so inclined to the eastward as to allow them to pro-
ceed by a northern route to Europe, that they had ascended
into these latitudes at all. But Mr Greenhow, for precisely
the same reason that he would throw discredit on their
accounts of the climate, attempts to throw discredit also upon
Fletcher's description of the north-westerly direction of the
B
coast. He would thus treat the former, because the intensity
of the cold, as represented in the narratives, presupposes a
higher latitude than 43 degrees, to which he would confine
Sir Francis Drake ; and he would discredit the latter, because,
by showing that the admiral had reached the point where the
land inclined to the north-west, he had in fact reached the 48th
parallel of latitude, the point assigned by Fletcher, and not
denied by Pretty. We have already seen that Mr Greenhow
himself does not call the accuracy of the narrator in question
when he describes the direction in which the land from 43 deg.
to 48 deg. didnot trend i and he cannot be allowed, to suit his
own views, to attempt to falsify the statement of the same in-
dividual, when he describes how it did trend when the expedi-
tion reached the point where the coast first assumed its north-
westerly inclination. He who is competent to say correctly
that, in a distance of about 500 miles, a coast does not stretch
at any point to the eastward, is surely competent to say when
it stretches to the westward ; and when his statement in both
cases tallies with what is now universally known to be true,
he cannot be justly suspected of falsehood in the one case when
he is admitted to have told the strict truth in the other.
" But it is more convenient for Mr Greenhow to discredit his
statement — as to having seen the coast running to the north-
west— than to allow that the expedition reached a point where
the coast did so incline ; for if Fletcher told the truth, the
expedition did reach that point ; and if it did reach that point,
it reached latitude 48 degrees, and, consequently, ascended
nearly two degrees above the latitude of the mouth of the
Columbia.
'^ Thus, then, we see, that there is every reason to believe that
Drake's discoveries on the north-west coast extended as far
north as the 48th parallel of latitude, that is, about two degrees
north of the Columbia River, and from 5 to 6 deg. north of the
point which Mr Greenhow is willing to admit that he reached.
We see that his course from the 3rd of June, when he deter-
mined to make land, was a north-east, and not a southerly
course, as Mr Greenhow would have it to be ; a conclusion
which better tallies with the time at which he reached the bay
in lat. 38 deg., than if he had steered directly south from the
43rd parallel. We have seen that Mr Greenhow deems it
unlikely that Drake could have ascended from 5 to 6 degrees
to the northward, against northerlv winds, in the short space
of two days (that he was compelled thus to encounter head
winds, however, being an erroneous conjecture, considering
Drake's probable position on the 3rd) ; but is it not much
more unlikely that he would have taken from twelve to four-
19
teen days to sail from 4 to 5 degrees to the soutliward,
with a favouring north wind blowing all the time ; for he did
not reach the bay in which he refitted until the 17lh? The
whole of that time, however, might easily liave been consumed
in first ascending to latitude 48 decrees ; and then, on finding
no available harbour there, proceeding cautiously to the south-
ward, until he entered what is considered to be the bay at
present known as the Bay of San Francisco. Until, therefore,
an equally authenticated discovery can be shown to have
taken place prior to this period, of this same coast, in favour
of Spain, the title of England to the ultimate exclusive
sovereignty of the territory must stand unaffected by the pre-
tensions of Spain, or those of any other power seeking to
derive a right through her."
Between titles founded on mere discovery^ the dis-
covery of Drake gives a priority. But as the English
made no settlement until about the vear 1790, the in-
terval of two centuries would establish the fact of an
abandonment of an intention to settle, if previous to 1790
the government of any other country had made a settle-
ment on the coast ; for there can be no question, that
mere discovery is not alone a complete title to possession*
The first voyage made by the Spaniards along the western
coast of America, w^hich it is necessary to notice, is that
made by Juan Perez in 1774. The last voyage previously
made by the Spaniards on this coast occurred as far back
as the year 1603.- No oflficial account of the expedition of
Juan Perez has been published, but it has been inferred
that he discovered Nootka Sound; though it is admitted, at
the same time, that the discovery of this important harbour
is by general consent assigned to Captain Cook ; and that
the government of Spain " has deprived itself of the means
of establishing beyond question the claim of Perez to the
discovery." — (Greenhow, p. 117.)
On the return of Perez another expedition was sent to
the North Seas by the Spanish government. It consisted
of two vessels, the * Santiago,' commanded by Don Bruno
Heceta, and the * Sonora,' commanded by Don Juan
Francisco de la Bodega y Quadra, who succeeded Ayala
after the vessel sailed, and who had with him Maurelle as
pilot. Soon after leaving the Isle de Dolores, north of the
Columbia, the vessels parted company. Bodega proceeded
north beyond the 56th degree of latitude, and examined
the coast now belonging to and possessed by Russia. The
20
* Santiago' retamed, and on the 15th of August, 1775,
Heceta observed an opening in the coast in lat. 46' ? 7', from
which rushed a current so strong as to prevent his entering.
This fact convinced him of the existence of a river, and he
placed it on his chart, under the name of the Kio St Roc.
— ('Greenhow, p. 120.) This is the first notice of the
Columbia River.
In the year 1778 Captain Cook visited the west coast of
North America, to which Drake had given the name of
New Albion. On the 7 th of March he reached the coast
in 44 deg. of north latitude. He continued his exploration
north, but passed the Columbia River without observing it.
He discovered Nootka Sound, among other places, and
having reached the land at the foot of Mount Ellas
(lat. 60° 18'), continued his course round the coast to the
Aleutian islands. This was the first voyage in which any
survey of lue coast that can be relied on, or that even
deserves the name, was made.
In 1779 Spain became involved in a war with Great
Britain, and its flag did not again appear on the coast
north of Cape Mendocino until 1788. — (Greenhow, p. 126.)
In 1789 the seizure was made of the *Iphigenia,' the
'Argonaut,* the * North- West America,' and the * Princess,'
at Nootka, by the Spanish captain, Martinez. Meares, the
Englishman chiefly concerned in the adventure and trade
in which they were engaged, may, and certainly seems to,
have misrepresented several facts connected with it; he
may have hoisted other colours than British, in order to
evade a supposed infringement of the rights of the East
India Company ; and he may hh,ve demanded and obtained,
as always happens in demands for indemnification, more
than was actually lost; but Martinez certainly exceeded
his authority, for he was specially instructed by the Vice-
roy of Mexico not to capture any British vessels on the
north-west coast. The personal facts of the case are not
of the slightest importance ; the only question dependent
on it is, whether or not the English or any other foreign
nation had a right to trade on the coast, or, at this time,
to make settlements upon it i'
Now it is a clear and admitted fact that the government
of Spain never made any settlement north of Cape Mendo-
cino. The whole coast for upwards of 25 degrees north of
this cape was waste, unsettled, and unoccupied. Through-
21
out the whole distance there was no person authorized to
execute authority on the part of Spain, or any other power,
at any single point.
The right of making settlements under such circum-
stances as these has been argued by Mr Greenhow, and hia
argument is too important, upon account of its admissions,
to omit. He says —
** It should be observed with regard to the right of the
Spanish government to take possession of Nootka, that before
the 6th of May, 1789, when Martinez entered the sound with
that object, no settlement, factory, or other establishment
whatsoever, had been founded or attempted ; nor had any
jurisdiction been exercised by the authorities or subjects of
a civilized nation in any part of America, bordering upon
the Pacific, between Port San Francisco, near the 38th
degree of north latitude, and Prince William's Sound, near
the 60th. The Spailish, the British, the Russians, and the
French had, indeed, landed at many places on these coasts,
where they had displayed flags, performed ceremonies, and
erected monuments, by way of ' taking possession,' as it is
termed, of the adjacent territories for their respective Sove-
reigns ; but such acts are, and were then, generally considered
as empty pageants, securing no real rights to those by whom
or in whose names they were performed. Nor docs it appear
that any portion of the above-mentioned territories had become
the property of a foreigner, either by purchase, occupation, or
any other title which can be regarded as valid.
" The right of exclusive sovereignty over these extensive
regions was claimed by Spain in virtue of the papal concession
in 1493, of the first discovery of the coast by Spanish subjects,
and of the contiguity of the territories to the settled dominion
of Spain. Of the validit}^ of the title derived from the papal
concession, it is needless in the present day to speak. That
the Spaniards were the first discoverers of the west coasts of
America, as far north as the SOth parallel of latitude, has
been shown ; and the fact is, and ever has been, since the pub-
lication of Maurelle's * Journal' in 178i, as indisputable as
that the Portuguese discovered the south coasts of Africa.
The extent of the rights derived from discovery are, however,
by no means clearly defined by writers on public law ; and
the practice of nations has been so difterent in ditferent cases,
that it seems impossible to deduce any general rule from it.
That a nation whose subjects or citizens have ascertained the
existence of a country, previously unknown, should have a
belter right than any other to make settlements in that
22
country ; and, after sucb settlement, to own it, and to exercise
sovereignty over it, is in every respect conformable with
nature and Justice ; but this principle is liable to innumerable
difficulties m its application to particular cases. It is seldom
easy to decide how far a discovery may have been such, in all
respects, as should give this strongest right to settle, or to what
extfnt of country a title of sovereignty may have been
acquired by a particular settlement. And even when the
novelty, or priority, or sufficiency of the discovery is ad-
mitted, the right of prior occupation cannot surely be re-
garded as subsisting for ever, to the exclusion of all other
nations; and the claims of states occupying contiguous ter-
ritories arc always to be taken into * consideration.'"
Notwithstanding the alleged difficulty of determining
when the government of a country, which has no title to
occupy a vacant territory by reason of discovery, may
occupy it as abandoned, the practice in 'such cases has been
tolerably uniform. Discovery alone, and an alleged inten-
tion to occupy, certainly do not give a perfect title, unless
an actual occupation takes place. Nor does the discovery
of part of a great territory entitle the first settlers to take
the whole. For instance, the continent of North America
was first discovered by the English under Cabot ; but the
right, nevertheless, of the French to settle on it was never
questioned. The southern part of the same continent was
occupied by Spain, but the French, nevertheless, made the
contiguous settlement of Louisiana. Where there is clear
evidence of abandonment — where the discovery is not fol-
lowed by preparations to occupy, a settlement may be made
in opposition to a title of discovery. Where, also, the
territory can be separated by any natural and distinct
boundary — whether that of distance from prior settlements,
or the physical facts of mountains or deserts — a settlement
can be made in opposition to any previously made.
But " a settlement " must be understood to mean, the
establishment of the laws or government of the persona
making the settlement, with the consent and authority of
the nation to which they belong. Without such an autho-
rity they are mere outcasts and vagabonds on a desert,
and have no right to fonn a government of themselves.
A colony of the mother country — that is, a body of settlers
among whom the law of their country can be administered
— can only be formed by the consent of their own govern-
23
ment. DisCoveriea actually accompanied by occupation,
without such consent, do not entitle the settlers to any of
the rights of their own government, or to exercise any power,
even of the most inferior description, under the pretence of
being a colony. A settler can only have the authority
that is delegated to him, and without such a delegation he
has no power. His occupation of new territory may be
subsequently recognized by his own government; but unless
it is so recognized, prior to any settlement being made by
the authority of some other government, it does not become
a dependency of the nation of the settler.
At the time the English were at Nootka, the coast was
perfectly abandoned by Spain ; there was no Spanish set-
tlement on it. It was open to any nation to make a set-
tlement, or to recognize any that had been made by its
subjects without authority.
When the news arived in England of the seizure of the
vessels by Martinez, the British government claimed the
right of having indemnification made to their owners ; it
determined to recognize any settlement that had been
made, and it expressed its intention to make settlements on
the west coast of America. On the 5 th of May, 1790, a
message of the Crown was delivered to Parliament, com-
plaining " that no satisfaction was made or offered for the
acts of seizure, and that a direct claim was asserted by the
Court of Spain to the exclusive rights of sovereignty, navi-
gation, and commerce, in the territories, coasts, and seas in
that part of the world." The message was received by
Parliament with much approbation, and the necessary sup-
plies were very liberally granted to enforce the claims made.
In the declaration of Spain, dated Aranjuez, June 4, 1790,
signed by the Conde de Florida Blanca, it is said that,
" although Spain may not have establishments or colonies
planted upon the coasts or in the ports in dispute, it does
not follow that such coast or port does not belong to her."
The British government alleged "that English subjects
had 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 pre-
viously occupied by any European nation."
On the part of Spam there was no declaration of an in-
tention to occupy ; and on the other side there was no
24
assertion of a right to occupy in case occupation had been
already taken by an European power.
The dispute was terminated by the convention between
Great Britain and Spain, signed at the Escurial, October 28,
1790. By the third article it was agreed that " the respec-
tive subjects of the contracting parties should not be
molested 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." But this
article was subject to the restriction, that the government
of Great Britain should prevent an illicit trade with the
Spanish settlements, and that the British should not navi-
gate'or fish within ten leagues of the coast already occupied
by Spain. And it was by the fifth article agreed, that as
well in the places restored as " in all other parts of the
north-western coasts of North America, or ot 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 mfike any, the
subjects of the other shall have free access."
This convention was an admission of the right of the
British government to make settlements, and the right
sanctioned is not to be distinguished from that of Russia
to its settlements on the north-west coast. The admission
of this right was not granted as a licence, liable to be re-
voked or lost by a war — it was not made as a favour or
concession. It is one of those agreements respecting ter-
ritory— such, for instance, as the treaty of 1783, made
between Great Britain and the United States — which a
war does not revoke. The admission contained in the con-
vention is of a principle to which the States of A nerica,
the colony of Canada, and the State of Louisiana, owe
their existence. No new doctrine was set up. An old
established rule was recognized, and a war would have
been the result if it had continued to be contested.
Mr Adams, whose long and distinguished career in the
highest offices of his country had made him familiar with
these questions, was compelled to treat it as a definitive
settlement of a general princii)lc of national law (Green-
how, p. 341, n.). And tne President Munroe, in his mes-
25
sage of December 2, 1823, admitted that no new principle
had been asserted in the claims of Kussia, and of Great
Britain, to settle on the coast, but that the occasion had
been found proper for asserting that " henceforth the
American continents were not. to be considered as subjects
for European colonization " — a declaration against which
the Courts both of Russia and of Great Britain protested.
— (Greenhow, p. 336.)
The convention did no*^ exclude Spain from making set-
tlements if it should think fit ; but on the part of Spain
the right of Great Britain to make them was acknowledged,
and the intention and right of making one at Nootka Sound
was especially declared and allowed.
Much of the difficulty which ha« arisen upon this subject
would have been avoided if the terms employed in this
convention had been attended to. It was not the intention
of the English government to let loose a body of men upon
the west coast of America, free to act as' they pleased, and
to exhibit their passions in the licence and violence of a
lawless condition. Nor was it the intention of the Spanish
government to establish its law over them. The proposed
" settlements " were to be those of a civilized nation, and
necessarily implied their subjection to English law ; and
this, not for a temporary object, but in order to occupy the
country, according to the open and distinct declaration of
this, purpose in the previous official correspondence.
When the convention was communicated to Parliament,
it became the subject of party discussion, as every important
communication to a popular assembly will be. The just
and wisely-arranged treaty lately made between Great
Britain and the United States respecting the north-eastern
boundary of the United States — a treaty which ought,
beyond all others, to have been accepted with unanimous
approval, being a most honourable settlement of a most
complex question, did not escape the bitter though for-
tunately impotent criticism of a party opposition. Such
attacks, when great interests are at stake — when unanimity
might be instructive and no principle is compromised —
may be regretted, but the language of them is not to be
adopted in the interpretation of the policy of those whose
acts are condemned. Mr Fox, Lord Grey, and the Marquis
of Lansdowne contended that by the convention of the
Escurial, nothing had been gained and much surrendered.
^
" If the Enj^lish," said Lord Grey, " form a settlement on
one hill, the Spaniards may erect a fort on another." The
English ministers did not enter into an explanation. They
had not demanded the supplies, which enabled them to put
afloat a great armament, in order to effect so absurd an ar-
rangement as that described by the opposition, and Mr Pitt
was too sagacious to have committed the blunders imputed
to him. The instructions given to Captain Vancouver,
who was commissioned to sail to the north-west coast of
America, and to take possession of Nootka Sound, and to
ascertain what parts of the coast were unsettled, were an
official interpretation of the convention, and they certainly
appear to have been drawn up in conformity with an agree-
ment with the Spanish government. On the 4th of June,
1792, after the survey of a considerable extent of coast.
Captain Vancouver, at Possession Sound, took possession,
" with the usual formalities, of all that part of New Albion
from the latitude 39° 20' south, and long. 236° 26' E. to the
entrance of the inlet of the sea said to be the supposed
Strait of Juan de Fuca, as also of all the coasts, islands,
&c, within the said strait and both its shores."
On the 23rd of June Captain Vancouver met the Spanish
schooners, the * Sutil ' and the * Mexicana,' under the com-
mand of Galiano and Valdes. The communications be-
tween the commanders were of the most friendly character.
At Nootka, Vancouver met the * Daedalus,' with instruc-
tions from the British government, and he was referred
to a letter brought by the same ship from the Count de
Florida Blanca., addressed to the commandant of the fort
of San Lorenzo at Nootka, ordering that officer, in con-
formity with the first article of the convention, to put his
Britannic Majesty's commissioners in possession of the
buildings and districts, or parcels of land which had been
occupied by the English in April, 1789, as well in the
port of Nootka as in Port Cox, situated about sixteen
leagues further southward.
It is impossible to understand how it could ever have
been inferred from these events that Great Britain and
Spain had agreed to a "joint occupancy " of the country,
Tne British government claimed the right, which it as-
serted was common to any civilised government, to take
possession of vacant wastes. It never pretended to claim
a joint occupation with Spain — for it was admitted that
27
a
Spain did not " occupy " the country — but simply
right common to H, Spain, &c., to settle in countries beyond
the limits of any civilized government. This right being
acknowledged, Vancouver took possession of the country
from 39" 20' to the Strait of Juan de Fuca. This posses-
sion was taken exclusive of Spain. It was an act indicating
the construction of the Nootka convention by the govern-
ment of Great Britain. Nor is this all. The proceedings of
Vancouver were published with the sanction of govern-
ment in 1798. There was no concealment of what had
been done. The official act by which the country was an-
nexed to the British Crown was notified to all the world, and
it was not followed by any remonstrance or adverse claim.
How, under these circumstances, could "joint occupation"
be inferred ? If there had been joint occupation, there
must have been "joint law" administered— or, in fact, no
law. The absurdity is convenient, in order to complicate
the subject, but it has no foundation in the events of the
Nootka contest.
The correspondence between Vancouver and the Spanish
commandant. Quadra, differed respecting the extent of
cession to be made ; and they agreed to submit the matter
to their respective governments.
The expedition of the * Sutil ' and the * Mexicana ' in
1792 was the last made by the Spanish government with
the object of discovery in the North Sea. After this the
Spaniards abandoned the coast in dispute, and never at-
tempted to form an establishment upon it. — (Greenhow,
p. 257.) The order for the abandonment of Nootka was
not merely sent bv the * Daedalus,' but was communicated
to that most eminent Viceroy of Mexico, the Count de
Kevillagigedo, — a name ever to be honoured. — (Greenhow,
p. 227, n.)
After having taken possession of Nootka, Vancouver
proceeded on the survey of the coast. Meeting with the
American vessel the * Columbia,' commanded by Gray,
he was informed of the river noticed by Heceta, into
which Gray had entered and named after his vessel.
Broughton was sent to examine the river, and passed the
bar. His survey extended inland for upwards of one
hundred miles from where he anchored his ship. " Pre-
viously to his departure he formally took possession of
the river and the Country in its vicmity in nis Britannic
28
Majesty's name, ^ having every reason to believe that'
tV*^ subjects of no other civilized nation or state had
ever entered the river before. In this opinion he was
confirmed by Mr Gray's sketch, in which it does not
appear that Mr Gray either saw or was ever within five
leagues of ivs entrance."*
• The very bitter tone in which Mr Greenhow speaks of Captain
Vancouver, and his complaint that Captain Y. endeavoured to de-
prive Gray of the honour of having seen the Columbia River, is not
justified by the facts. It appears by the log-book of the * Columbia,'
that Gray crossed the bar of the river on the 11th of May, 1792.
At or ft o'clock he anchored. At noon of the 14th he weighed
anchor ; at four o'clock he had sailed upwards of twelve or fineen
P'Ues, and at half-past four o'clock the ship took ground, when she
was backed off and again anchored. On the 16th Gray dropped
down the river, and the subsequent movements were to get the
vessel out. On the 20th he got clear of the bar. The river he
named the Columbia, and called one point of the entrance Adam's
point, and the other Hancock's point.
These facts are no doubt correct. The log-book has been printed
in reports of committees of Congress, and the copy verified by
affidavit, in the belief that it contradicts the English statement of
the case.
Captain Vancouver states (vol. ii, p. 63), that Broughton had with
him a chart made by Gray — that he got to an inlet whi<jh he sup-
posed the chart to represent, and passed Adam's point. After a
minute description of the inlet, he says : — *' This bay terminated the
researches of Mr Gray, and to commemorate his discovery it was
named * Grab's Bay,' " This certainly proves that there was no
wish to avoid acknowledging Gray's merits. The inlei; from the
sea to the river runs about east and west, and in the chart of Van-
couver " Gray's Bay " is placed east of Adam's point, and far
inland. On the 24th of October (1792) Broughton left the
* Chatham ' in lat. 46" 17', having brought it as far within the bay
as he thoug .safe, and as far as he had reason to suppose the
' Columbia had been brought — (Vancouver, vol. ii, p. 66.^ H^
then proceeded to survey in a boat, taking with him a week a pro-
visions. He proceeded up the river until the 30th, and calculated
the distance he went, and which he particularly describes, •* from
what he considered to be the entrance of the river, to be eighty-
four, and from the 'Chatham' 100 miles." That is, that the
entrance of the river was sixteen miles (upwards of five leagues)
^ above where he left the * Chatham,' and consequently above where
Gray anchored. He therefore came to the conclusion that Gray
did not see what he called and explained to be •• the entrance," and
this conclusion is sustained by the distance mentioned in Gray's own
log-book.
Thus the statement of Broughton and that of Gray are perfectly
consistent, and there is nothing in Vancouver's relation of the facts
of the case to justify the charge " that he possessed good temper and
29
Recognizing the merit of Gray, and admitting the claim
that he is th§ first person who noticed the river after
Heceta, who placed it on his chart within one mile of its
true position, — still no claim can be set up on this account
by the United States. The discovery of a river, after the
coast adjoining it has been discovered, has no peculiar
virtue to exclude rights connected with the discovery of
the adjoining coast. Before Grray entered the river, the
entire coast had been traced. The possession of a river
may be followed with important ink 1 rights ; but Gray
neither discovered it for the first time, nor had authority
to take possession of it. In the discovery he had been an-
ticipated by Heceta ; he had no power to take possession,
for he was in a private ship, pursuing his private affairs ;
and the private acts of an American citizen in such matters
are not more important than similar private acts of English
subjects.
The discovery of Gray has been put forth by the Ame-
rican government as the foundation of a title to the country.
It took place in 1792 ; and therefore, if the government of
Spain had any title to grant territory reaching to the
Columbia in 1819, Gray's proceedings must have been
hostile, and an invasion of Spanish territory. Grp,y, how-
ever, being a private person, could not have committed an
good feelings, except with regard to citizens of the United States,
against whom and their country . he cherished the most bitter ani-
mosity." So far from this being so, he makes the fullest acknow-
ledgment of Grab's services — he retained the name of " Adam's
point" on his chart, and he adopted that of Gray's ship, the
* Columbia/ as the name of the river. The error that Mr Green-
how has made has arisen from his taking a single sentence without
the context. The inlet may be considered as part of the river,
butj Broughton was justified in thinking it to be an arm of the
sea. He concealed nothing, and gave his reasons for distinguishing
the entrance of the river from the entrance to the inlet, for which
he had the practice and authority of navigators. So far from
misrepresentmg the facts, the very evidence of Gray's log-book,
which is produced to contradict him, verifies his statement. The
veracity of Vancouver can never be disputed. lie exhibited an
anxious caro to recognize the previous discovery of Gray, and no
American who shall read the whole account — though he may say
that the entrance to the river is the entrance to the inlet — can
come to the conclusion that any fact has been misrepresented, or
that there was any attempt to do injustice to Gray. If Broughton
had not explained what he meant, there would have been reason
to complain.
30
act of public hostility ; but the setting up of this title is an
admission by the American government tliat the country
was, in 1792, open to be occupied by persons having the
official authority of their government, as Vancouver had.
Such an admission — and it has been formally and officially
made — is destructive of any alleged right to the country,
derivable from Spain.
The " taking possession " of new countries by authorized
official persons in the formal manner that it was done by
Vancouver, is not the idle ceremony Mr Greenhow repre-
sents it to be. By the law of England, the Crown possesses
absolute authority to extend its sovereignty ; it can send
its diplomatist to treat for, its soldier to conquer, its sailor
to settle new countrif.s. This it can do independently of
Parliament ; and no act of the ordinary legislature lo needed
to establish English law and authority in such countries.
A power of legislation is absolutely vested in the Crown
for these purposes, which it can execute through the
officers it may name. It can, also, as is well known to all
Americans, legislate for such settlements independently of
Parliament ; or it may delegate its own power of legis-
lation. The charter of Rhode Island granted by Charles II,
and under which that State was governed until 1842, is
an illustration of such legislation, and of the delegation of
such authority. The Crown in that case, by its own
legislative act, established English laws in that colony, and
delegated its power of legislation to a very popular local
legislature.
The "taking possession," therefore, of a new country
by persons officially authorized — and no private person can
assume the authority — is the exercise of a sovereign power,
a distinct act of legislation, by which the new territory
becomes annexed to the dominions of the Crown.
These principles were lately insisted on by the govern-
ment against British subjects: —
** * Neither individuals,' said Governor Sir George Gipps,
in a most luminous and admirable argument (New Zealand
papers. May 11,1841, No. 311, p. 64), < nor bodies of men
belonging to any nation, can form colonies except with the
consent and under the direction and control of their own
government; and from any settlement which they may form
without the consent of their government they may be ousted.
This is simply to say, that as far as Englishmen are concerned,
81
colonies carinot be formed without the consent of the Crown.*
— ' I thviught a declaration of the nature of that which stands
in the preamble necessary, upou the same grounds that it was
thought necessary by the Committee of the House of Com-
mons in 1837, and I think it is the more necessary now, when
I see the gross ignorance which prevails upon this subu'r't,
even among persons otherwise well informed, — when I hear
persons, and even lawyers, contend that Englishimen may pet
up a government for themselves whenever they like, and re-
gardless alike of the Queen's authority and their own alle-
giance. Why, Captain Cook had as much right to purchase
New Zealand for himself when he discovered it, or I had as
much right to purchase the island of Tongatoboo from the
chief of that country, who came to visit me the other day, as
Mr Wentworth had to purchase the Middle Island of New
Zealand from the savages who were in Sydney in February
last. When I cast my eye over the vast Pacific, and the in-
numerable islands with which it is studded, and consider that
one man may seize an island here and another an island there,
and that by dint of making themselves troublesome, they may
in the end render the interference of the government necessary,
it is time to let people know that the law of England does not
admit of such practices.' "
The constitution of other countries vests a similar sove-
reign authority in the Crown to that existing in Great
Britain; but under the American constitution the Pre-
sident has no authority of the kind; he cannot annex
territories to existing States, nor by his own act enlarge
the boundaries of American dominions. The constitution
has, in its first article, vested " all legislative power " in
Congress. Before, therefore, the sovereignty of the United
States can be established in a new territory, there must be
an equivalent act of legislation by Congress to that neces-
sary to be performed by the English Crown. How other-
wise is it to be known to what country the territory
belongs ?
After a country has had a new territory formally an-
nexed to it, there doubtless remain other acts to be per-
formed to complete the title, such as actual settlement, &c. ;
or, otherwise, the inference of other countries is that the
intention to occupy if abandoned. But the prior righi to
settle continues, even if there is a ground to imagine an
intention to abandon, until some other country shall
actually, and according to the forms which its laws
32
sanction, establish its own laws and authority in the
country.
In 1805 Louis and Clarke, who had been commissioned
in the previous year, by President Jefferson, to explore the
country west of the Rocky Moantains, reached the Co-
lumbia River, and returned to the United States in 1806.
But this act of exploration, not resting on an original right
of discovery, nor accompanied by any act of American
legislation respecting the country, nor by any attempt to
occupy, clearly does not establish a title to the territory
west of the mountains. Nor is such a title set up.
** Politically, the expedition was an announcement to the
world of the intention of the American government to
occupy and settle the countries explored." — (Greenhow,
p. 288.) But riuch intention had already been announced
to the world by the English government in a public, au-
thentic, and legal manner, and its sovereignty over the
country declared.
In 1810 Captain Smith, from Boston, built a house and
garden on the south bank of the Columbia, but abandoned
it before the close of the year. This was the act of a
private person, and no political inference can be drawn
from it.
In the same year Jacob Astor, of New York, formed the
" Pacific Fur Company." He communicated his intention
to the British North- West Company, and offered to it
one-third of the interest of the scheme. The proposal w'as
not accepted ; and it is asked " if Mr Astor, a citizen of
the United States, was justifiable in thus offering to an
association of British subjects, noted for its enmity to his
adopted country, a share of the advantages to be obtained
under the fla^ of the United States, from territories exclu-
sively belongmg to the United States, and of which the
exclusive possession by the United States was evidently
essential to the advantage and welfare of the republic ?" —
(Greenhow, p. 294.) An English subject would have
been free to make such an offer. Exclusive possession of
the country by the United States certainly did not exist,
for it had not taken any step either to claim, to possess it,
or to annex it. When the company was formed, " the
majority not only of the inferior servants, but also of the
partnerSy were British subjects."— (Greenhow, p. 295.)
They made an establishment on the Columbia River, but in
33
consequence of difficulties, Macdougall and Mackenzie an-
nounced their determination, on the lat July, 1812, to
dissolve the company, and Mr Hunt, another of the
partners, in August, 1813, acceded to it. On the 16th of
October, 1813, an agreement was made between Messrs
Mactavish and Alexander Stuart, on the part of the
British North- West Company, and Messrs Macdougall,
Mackenzie, and Clarke, on the other part, by which all the
establishments, furs, stock in hand, of the Pacific Com-
pany, in the country of Columbia, were sold to the North-
West Company for about 58,000 dollars. The difficulties
which caused *his dissolution might, it is said, have been
overcome, " if the directing partners on the Columbia had
been Americans instead of being, as the greater part were,
men unconnected with the United States by birth, or
citizenship, or previous residence, or family ties." — (Green-
how, p. 305.) It was, therefore, a settlement made by a
majority of English, and the sovereignty of the English
government having been declared over the country, they
were amenable to English laws. Mr Astor could not annex
the territory to the United States, and his sole object was
to obtain furs. Shortly after the sale was made, a British
sloop of war, the * Racoon,' reached the Columbia, and the
name of Fort George was given to the establishment.
Supposing, however, that the war between Great Britain
and the United States had not broken out about this time,
and that the * Racoon ' had brought to Columbia a judge,
or a commission to any of the partners, to act as judge in
the civil and criminal affiiirs of the colony, could the United
States, or any other country, have insisted that he could
not have exercised jurisdiction ? Could any persons who
were there have exempted themselves from the jurisdiction
of such a court ? But, on the other hand, let it be sup-
posed that the President of the United States had sent a
commission to any person to administer the law there,
would that commission have been operative ? Would the
Supreme Court of the United States have held, that in
countries over wliich the legislature of the United States
has not established its law, — which had not been annexed
to or posspssed by its government, that the President could
deal with men's lives, with their fortunes and property, or
govern beyond the jurisdiction of American law ?
The United States had not subjected the Oreg n or the
14
34
Columbia to its authority. It formed no part of any
existing State; it was rot a portion of a territory over
which it had legisFated, or even claimed to legislate.
The British government, on the contrary, had declared
its intention to establish its law there, and it had attached
it to its dominions in a formal and authentic manner.
When the North- West Company took possession of the
establishment in 1813, an authorized colony of British sub-
jects from that moment was formed, subject to and
govci-ned by English laws — an actual occupation of the
country was made, and a settlement on the river has con-
tinued until the present day. The company was legally
emix)wered to make such a settlement, and when made
the English law prevailed over it. A more perfect title
could not be proved.
At the termination of the war between Great Britain
and America, a demand was made for the restoration of
the post sold by Mr Astor's partners, as a portion of the
territory of the United States taken during the war. The
answer was, that it had not been captured ; that the
Americans had retired from it under an agreement of sale ;
that the North- West Company had purchased it ; that the
territory had early been taken possession of in his Majesty's
name, as it had been by Broughton in Vancouver's expe-
dition, and that it had been since considered to form a
part of his Majesty's dominions. — (Greenhow, p. 307.) It
was, however, agreed that the post should be restored, and
** that the question of the title to the territory should be
discussed in the negotiation on limits and other matters,
which was soon to be commenced." *
This negotiation and its temporary settlement deserve
particular notice. The United States contended that it
nad a right to the territory ; it asserted this right in the
most formal and solemn manner, and it received possessioc
* I cite
because in
this
subsoquont
Btatement in the words of Mr Greenhow (p. 308),
ffea, which he heads ' British Views of
National Faith ' (SIO, 312), he declares that Fort George was de-
livered up without any reservation or exception, and expresses his
disbelief that Sir Charles Bagot, the British minister, communicated
to the / niericau government, in pursuance of Lord Castlereagh's
directic of the 4Ui of February, 1818, the fact that Great Britain
claimed the territory, and insisted that the American settlement
was an encroachmflnt. The deliver]^ was clearly the execution of
the conditional agreement mentioned in the text.
35
of the post in consequence of its official remonstrance. Now
it matters not whether its title, as against Great Britain,
was valid or not. After this arrangement it could not,
without violation of its honour and a breach of its engage-
ments with Great Britain, enter into a treaty with Spain
affecting the post in dispute ; nor can it allege a title to it
through Spain, without proclaiming to the world that the
a^ertion of its pretensions in 1814 were without founda-
tion, and that it knew them to be without foundation.
This act of dishonour it must admit, if the treaty of 1819
is alleged to confer any title. A title in 1814, and a title
under the treaty of 1819, are utterly inconsistent. If the
treaty of 1819 is relied on, then it must be admitted that
Great Britain waa "in occupation" in 1814, when the
post at Astoria was given up, and that this occupation was
rightful as against the United States. That such occupa-
tion was rightful as against Spain has already been proved.
But if the allegation of the government of the United
States, that its title to Astoria was rightful in 1814
is relied on, then it necessarily follows that the treaty of
1819 could only confer a right to territory south of the
settlement of Astoria, and south, also, of the British settle-
ments on the Columbia River, and that the territory north
of Cape Mendocino was open to the settlement of other
countries than Spain in 1814.
From these facts it is impossible that the government of
the United States can extricate itself without dishonour,
if its title to the Oregon Territory is insisted on.
It was probably from a knowledge of an intention to
set up a claim, founded on the treaty of 1819, that the
American government suspected that the ratification of
this treaty was delayed through an intrigue of the Britisli
government. But we acted on that occasion as wc have
done in every transaction with the United States — in
perfect good faith, and with the fullest reliance upon the
honour of the American government ; assuming no fraud
or deception on its part, performing <jur own obligations
affecting the rights of other parties, and only asserting
rights to which we were justly entitled. When Lord
Castlereagh received Mr Rush, the American minister, in
September, 1819, he read to him part of the despatches of
Sir Henry Wellesley, to prove that the wishes of the
ir
• r
36
British court had been made known to the Spanish
cabinet in favour of the ratification of the treaty.
These despatches were dated June 6 and July 6. In one,
Sir Henry Wellesley distinctly expressed his opinion that
the true interests of Spain would be best promoted by
the ratification. Lord Castlereagh also added, that " the
willingness of the British cabinet to accede to the posses-
sion of the Floridas by the United States might be inferred
from the indirect offer which it had made two years before
to mediate between the United States and Spain — an offer
which had been declined." It was not then supposed to be
possible, that the government of the United States would
attempt, through that treaty, to evade the discussion of the
oucstions which the settlement made by Mr Astor's
partners on the Columbia had occasioned, and which were
then pending.
From the facts above related, it may be inferred that
Spain never occupied, but abandoned the west coast of
North America ; that the country was open to the settle-
ments of other countries than that of Spain — even by the ad-
mission of the American government in its assertion of a
claim to Astoria in 1814; that the British government in 1792
announced its intention to occupy, and formally declared
the annexation of parts of the coast to its own territory,
acting in this respect as the government of Russia has
done ; that the settlement at Astoria was a private and
unauthorized proceeding ; and that the British settlement
on the Columbia was the first of a national and legal
charactei" recognizable as such by foreign nations.
The extent of the coast claim which the British govern-
ment was entitled to insist on, in the subsequent negotia-
tions, might have been sustained by the following prin-
ciples, which were laid down by the American government
in its communications with the Spanish minister in 1819 : —
** First, that when any European nation takes possession of
am/ extent of sea coasty that possession is understood as extend-
ing into the interior country to the sources of the rivers empty-
ing within that coast— to all their branches, and the countries
„hey cover; and to give it a right, in exclusion of all other
nations, to the same.
" Secondly, that whenever one European nation makes a
discovery, and takes possession of any portion of this continent,
37
and another afterwards does the same at any distance from it,
where the boundary is not determined by the prineiplet, above
mentioned, that the middle distance becomes such course.
I* Thirdly, that whenever any European nation has thus ac-
quired a right to any portion of territory on this continent, that
right can never be diminii^hed or affected by any power by
virtue of purchases made by grants or conquests of the natives
within the limits thereof."
That is, the British government, on authority of these
texts of national law, which are perfectly correct, was en-
titled to a boundary which should include both banks of
the Columbia River, and all the territory drained by it, in-
cluding the whole coast line and other rivers, of which
possession had been taken by Vancouver, under the orders
of his government.
Secondly. By the 7th article of the treaty of Paris of
1763 — which related only to Louisiana and Canada — the
line drawn from the source of the River Mississippi to the
south, gave to Great Britain all the lands on tlie east bank
of the river, except New Orleans, and secured to France
and through it to Spain, the territory west of the same
line, as far as the Rocky Mouatains or western boundary
of Louisiana. But the territory of Canada, north of the
source of the river (47° 10' N. lat.), and north of a line
running west from the source of the river, was left as part
of Canada, of which it most indisputably formed a portion.
This clearly appears from the official map engraved in 1757,*
and used in the negotiations of 1762. The American and
• M. Duflot de Mofras, whose work on California, published at
the expense of the government of France, exhibits no partiality
towards the English, refers also to this map, and comes to the con-
clusion that the claims made by the Americans are without founda-
tion : —
*• Pour la limite du sud, lo Mexique ct rEspagno ont agi de la
memo maniere : lis ont concede aux Etats-Unia Icurs droits sur
les controes situces au nord du 42" parallelo ; mais il est do touto
e'vidonce qu le traitd des J^^loridcs no saurait porter atteinte k la va-
lidite dc la oonvention de 171)0, il no constituo qu'une simple renon-
ciation, et les Etats-Dnis en y adherant, s'etant substitues a I'Es-
pagne pour le territoiro a I'egard duqucl cette puissance resignait
ses pretentions, doivent respecter tons les droits qu'un traite ante-
rieur au Icur avait rooonnu aux Anglais. Si nous avions mainto-
nant a emettre uno opinion sur cette ouestion importante, nous no
pourrinns, malgr^ nos sympathies pour les ICtats-lIniset notre avcr-
ui(m oontru le systeuio d'onvahissement de I'Angleterre, nous ompe-
cher dc rocuunaitro que la ruison ot lo droit son cette fois do sou c6l<3.
fi
38
the British titles, at this point, are both derived from the
French, and, consequently, what the French government
marked in this official map of 1757 as Canada, excluded
any subsequent claim to it as a part of Louisiana.
In the treaty made between Great Britain and the
United States, nothing west of a line running north from
the source of the Mississippi, to the line running due
west of the furthermost point of the Lake of the Woods,
was granted to the United States (ante, p. 7). All,
therefore, north of a line running west, from the source of
the Mississippi, that is, the country north of a parallel of
latitude of about 47 degrees, was English territory, and
formed part of Canada, unconceded by any treaty.
But the English government has neither insisted upon
its title to the whole of the Oregon, or even to the
whole of Canada — the latter of which would have been
very prejudicial to American interests. In a treaty
signed between the plenipotentiaries of Great Britain
and the United States, in April, 1807, it was agreed
that " a line drawn north or south (as the case might
require) from the most north-western point of the Lake
of Woods, until it shall intersect the 49th parallel of
latitude, and from the point of such intersection due west,
along and with the said parallel shall be the dividing line
between his Majesty's territories and those of the United
States, to the westward of the said lake, as far as their
respective territories extend in that quarter — provided that
nothing in the present article shall extend to the north-
west coast of America, or to the territories belonging to or
claimed by either party on the continent of America, to the
westward of the Stony Mountains." Unlooked-for events
prevented the ratification of the treaty, and the subject was
not again discussed until 1814.*
II est meme permis de s'etonner que, r^pudiant f>a t^naoitu liabU
tuelle, elle ait fait, aux Americans, daus le oours des negooiatious,
de si larges sacrifioea."
* The argument of Mr Greenhow (p. 281), that the reason wai
ill considered for adopting the 49th parallel of latitude, namely, the
treaty of Utrecht, and the acts of the commissioners, is foundea on lo
manifest an error respecting the extent of Canada, that it does not
merit discussion. The adoption of the 49th parallel was a jnst ar-
rangement, to both Great Britain and the United States, though it
gave less than the former had a title to insist on. Mr Jefferson was
perfectly satisfied with it — hut feared that the allusion to any claim
extending to the coast would be offensive to Spain. — (Greenhow,
p. 282.) This way in 1807, ^f ter the purchase of LouisUua.
\
39
In 1818 a convention was ratified between Great Britain
and America, after a long negotiation, in which the facts
already related formed the basis, by which the rights of
both countries Avere subjected to a temporary compromise.
It was agreed that a line should be the northern boundary
along the 49th parallel of latitude, from the Lake of the
Woods to the Rocky Mountains, and that the country
westward of the liocky Mountains should be free and open
for the term of ten years from the date of the convention
to the vessels, citizens, and subjects of both powers, without
prejudice to the claims of either country.
At the end of ten years the negotiations ^a this subject
were again renewed. It was proposed by Mr Canning
and Mr Huskisson that the boundajy beyond the Rocky
Mountains should pass from those mountains westward
along the 49th parallel of latitude to the north-easternmost
branch of the Columbia River, and thence down the middle
of the stream to the PaciCo. This was not agreed to, and
the negotiation terminated for a time.
On the 6th of August, 1827, a convention was signed,
renewing the provisions of the former one of October 20,
1818, and extending it for ar indefinite period, until either
party should annul it, on giviii^ a year's notice.
Mr Farnham, perfectly forgetful that the American
government, in its negotiations respecting the establishment
at Astoria, has admitted that the Oregon Territory waa
open to the settlement of other countries than that of
Spain, afiirms, with singular inconsistency, that an Ame-
rican title adverse to Great Britain — and in fact to Spain
— was formed through that settlement, and, also, that the
sovereignty to the Oregon is vested in the government of
America through a Spanish title (p. 52). In other words,
that the American government possessed the sovereignty
of the country in 1813, and did not possess it until 1819.
His a,rgument8 to establish both these positions are equally
long, and tiie one is perfectly conclusive against the
other : —
*' Drake (says Mr F.), an English pirate, ontered the Pacific
Ocean, ond pretended to have visited the coast between the
latitudes 37° and 48°." *♦ Elizabeth, while she knighted
him, remunerated the subjects of the crown of Spain for the
piracies he had committed. From such men's acts the laws of
nations recognize no i.'«rht8 of nations to arise, because if it be
40
*^ll
dtill insisted that Drake ever sa\v this coast (I), auu that bis
discovery was for the benefit of ih« crown of England, still it
avails nothing, inadmuch as Spain had already discovered and
explored it several years before ; and, in the fourth place, be-
cause England did not afterwards occupy by permanent settle-
ment, as required by the laws in such cases governing."
If this argument is believed to be a sufiicient reply to
the English claim, it must be equally sufficient against any
Spanish title. Whatever doubt there may be respecting
the extent of Drake's discoveries, it must be admitted that,
no permanent settlement having been made, there did exist
a right in any other country to step in and occupy the
land discovered. But this objection applies, also, to the
•Spanish title, for it is a known and admitted fact that,
whatever may have been the discoveries of Spanish officers,
no Spanish settlement was ever made north of Cape Men-
docino, and that the question comes back to this point — by
what parties, officially authorized to make settlements, was
a settlement in the Oregon Territory first made ? There
is no doubt of the fact that it was first done under the
sanction and authority of the British government. If the
opportunity at any time existed for the government of
Spain to have occupied the country, it never did so, and
the country never formed any portion of its ** provinces,
dominions, or territories." Ibis fact, which is conclusive
in support of the British title, affi)rds a perfect answer to
another argument set forth by Mr Farnham, founded on
the treaty of Utrecht of 1713. He alleges that " England
for ever quit-claimed to Spain, and warranted for ever
to her monarch and his successors, the north-west coast
of North America as far as the Straits de Fuca" (p. 55).
Need it be said that there is nothing in the treaty even in-
directly referring to the north-west coast of America ? But
as one groundless assumption leaves the argument incom-
plete, another is needed, and, therefore, it is added, that —
"The title of Spain to those countries and seas was not only
exclusive, so far as exclusive discovery could give a title, but
that the guarantees of England and the other powers at the
convention of Utrecht rendered all further aoti*, such as sub-
sequent acts of occupancy, &c., unnecessary to perfect that
title through all after time. For, by these guarantees, England
and the other powers waived the necessity of occupancy, &c.,
required by the law of nations to perfect the inuhoute rights of
)
\
41
prior discovery ; and waived, also, the possibility, on the part
of these powers, of acquiring .*y subsequent discwofiry or occu-
pancy any right in the territories thus solemnly conceded by
Spain."
This argument is certainly a singular jumble of contra-
dictions and unauthorized assertions. The treaty, it ia
said, is still binding. If so, all the parties to it are bound
to prevent the United States from interfering with Spanish
territories ; for the clause of the treaty cited in support of
the argument is, that " neither the King of Spain nor any
of his heirs or successors shall transfer or under any pre-
tence alienate from themselves and the crown of Spain
any provinces, dominions, or territories in America." If
still in force, how came it that Spain alienated the Floridas
in 1763 ? How has the United States become entitled to
the Floridas ? Was there no alienation in that case ?
But the argument admits that the Spanish government had
no occupation of the country, and that " subsequent dis-
coveries " on the west coast might be made : and then it is
asserted, without any proof, that the government of Great
Britain guaranteed the possession of dominions which
Spain did not possess, and the possession of countries which
were not discovered I And to make the absurdity com-
plete, this treaty — which it is alleged was to prevent new
discoveries and settlements of America by the English, and,
by consequence, its present possession of the Oregon — is
held by American authorities not to have been binding on
the government of Spain to pre-^ ent the alienation, to
the government of the United States, of any territory it
might have possessed in Western America !
The treaty is entirely misunderstood by Mr Famham ;
but his observations on it are valuable to prove how well
satisfied he is that the title he endeavours to sustain is
utterly invalid, and how perfectly well aware he is of its
exact defects.
After having involved himself in absurdities and contra-
dictions in his inferences from the treaty of Utrecht, Mr
Farnham turns to the treaty of Paris ot 1763, and affirms
that this also has been violated by the British government*
" France, says he, had many reasons for obtaining from that
unscrupulous neighbour (Great Britain) a guarantee of her
territories ' west of the Mississippi/ and did so in the treaty
42
Mil
of Versailles (1762) as far as 49*' north [47® 10', or sourcp of
the Mi8sissi[>pi]. If, therefore, she owned any land beyond the
Mississippi valley, she ceded it to France. If she did not, she
ceded her the right, as against herself, of acquiring title to all
the territory lying *west of the Mississippi and south of the
49th parallel of latitude' [south of the source of the Missis-
sippi]. How will British sophistry maintain her claim [the
claim of Great Britain] to the Oregon, as against the grantees
of France ? To this treaty the United States, by the purchase
of 18U3, have become a party ; and as by the treaties of Utrecht
and Versailles, England has abandoned, in the one case, to
Spain* as high as latitude 48° north on the north-western coast
of America; and, in the other Cbse, as high as 49° on the
same coast ; it becomes difficult to sec with what pretence of
right she now comes forward to recover what she has thus
solemnly, by two several treaties, deferred to others." — " Al-
though England, by virtue of the treaties of 1713 and 1763,
was precluded from gaining any right of sovereignty from dis-
covery or occupation, the United States have laboured under
no such disposition."
To this argument the reply is complete. By the treaty
of 1763 the boundary between Louisiana and the British
possessions was "irrevocably" fixed. At that time the
western boundaiy of Louisiana did not extend beyond tHe
Rocky Mountains (ante, p. 11). The country beyond the
mountains did not belong to France, and therefore this
treaty had no reference to it. There was no cession of a
right to acquire lands beyond the limits of the French
possessions, and there is not a word in the treaty to thia
effect.
It has already been shown that the treaty of Utrecht
has no reference whatever to the Oregon ; vet these two
arguments on the treaties of 1713 and 1763 nave been set
forth as conclusive against the claims of the British
government. They do not in the slightest manner disturb
the British title to the Oregon Territory founded on prior
occupation — setting aside any discussion on the question of
prior discovery — and Mr Farnham actually proves that
Spain was not in a condition, in 1819, to confer any title to
territory north of Cape Mendocino.
" We own (says Mr Farnham) Oregon hf purchase from Spain,
the sole discoverer and first occupant of its coast ; by purchase
from France, to whom England, by the treaty of Versailles,
43
relinquiihed her claim to it ; and by our own discovery and
prior occupancy of the Columbia River. Throuehout this work
incontrovertible authorities are relied on for nistorical facts,
and for the construction given to the laws a'i nations. Out of
her own month i^ Britain judged ; and if this pamphlet shall
serve to convince my countrymen of the insolent selnshness of
Great Britain — her grasping injustice-~her destitution of poli-
\ tical honesty — and serve to show a necessity for the people to
act for themselves, and to expect from the hands of their govern-
ment at Washington the mamtenance of the rights and nonour
of their country ; the author (! !) will feel ' ily rewarded fcr
whatever labour he has bestowed in collecting and arranging
the evidence of their rights to the Oregon Territory — the whole
of it, and nothing less.'*
It is not satisfactory to reprint such very ridiculous
trash, but it affords a very good example of the malij;nancy
of certain orators in America, and of the grave charges
which are made to excite popular opinion against the
government of this country.* The assertion that Spain
was the first occupant of the coast is contradicted by Mr
Farnham himself in his elaborate argument to prove that
the treaty of Utrecht rendered any occupation of it by the
government of Spain needless. That the English govern-
ment relinquished the coast to France by the treaty of
1763 is impossible, for that treaty did not relate to territory
not then occupied by the French ; and Mr Farnham's own
argument is directed to prove that the western coast, at
that time, belonged to Spain. The facts of Gray's dis-
coveries and of Astor's settlement need not be restated,
having been already very fully investigated. The claims
of Great Britain are neither unjust, selfish, nor dishonest.
* Persons who have remained a few months in America must
have been often surprieed at the constant repetition of paragraphs
in the public papers accusing the English govemmeut of the ex-
penditure of enormous sums of money for the acquisition of iiew
territory, or in intrigues for this purpose. Sometimes we are
said to be on the pomt of seizing Texas ; at other times, that we
have bought California, &c. Yet the writers of these articles are
perfectly well aware that no money can be expended by the
British government without the assent of parliament, and that
the purcnase of territory without such assent is impracticable.
The impolicy of the intrigues with which we are charged does
not excite the slightest uoubt of the absurd designs imputed
to ui,
m
They have sprung from events, the present results of
which were not foreseen. If American claims have come
into competition with the tn, it has arisen from no act of
the British government — ;md if they are opposed, it has not
been for the purpose of aggrandizement, or in order to
assert rights which are eitiier untenable or unjust.
The extreme north-wesvem part of the coast of North
America forms a portion of Bussian territory. The title
to it is partly that of di8C0\ery, and partly that only of
occupation. The chief establishmerts, if not the only
ones, formed on it, were made subsequently to the year
1798, when the coast from the 55th degree of north lati-
tude, northwards, was conceded to the Kussian American
Company. The company was authorised to explore and
to bring under subjection to the Imperial Crown, any
other territories in America, not previously attached to
the dominions of some civilized nation. — (Greenhow, p.
269). So that the Kussian government, six years after
the dispute between Spain and Great Britain respecting
Nootka Sound, acted on the principle admitted in the con-
vention of tho Escurial, and directed establishments to be
formed on vacant and unsettled parts of the coasts.
In 1824, a convention was signed between the govern-
ment of the United States and Russia, by the 3rd article
of which it was agreed, that the citizens of the United
States should not form settlements to the north of 54* 40'
of north latitude, and that the subjects of Russia should
not form establishments to the south of that parallel. The
principle upon which this convention proceeded cannot be
distinguished from that on which the olaim of the British
to part of the coast is founded. But if the government of
the United States anticipated the squeezing out of British
claims by this union with Russia, it was checked by the
convention made in 1825, between Great Britain and
Russia, by which the boundaries of the Russian territory
are very distinctly defined, and the intended effect of the
convention with the United States — as far as the United
States was interested in it — was checked.
An argument has been advanced in favour of the claim
of the United States on the ground of contiguity. But it
is one of even more force, if it has any, in favour of Great
13ritain than of the United States. It means, if anything,
that part of the territory claimed is essential to the perfect
Q
45
enjoyment of contiguous territory. Now the western
trade of North America is chiefly that of peltries obtained
by the English, and exported from Fort Vancouver, on
the Columbia, and an access to the river is important to
its continuance.
In the state above mentioned the question at this time
remains. The negotiations that have been renewed for its
settlement have been confided to the Kight Hon. Mr
Pakenham, the British minister at "Washington, who will
not be directed to propose, nor would he ask, or demand,
anything inconsistent with a just or a proper respect for
American as well as British claims. Whatever concession
the facts of the case adi^it of, will be perfectly consistent
with the honour and tht interests of the British govern-
ment. But hitherto the American government has not
shown the slightest title to concession, nor established its
right to the territory which it demands.
Notwithstanding the remarks which hav3 been made by
American writers, the British government has acted with
great temper and moderatioii. It has not placed its case
on extreme rights, and it has been actuated by a very sin-
cere desire to maintain friendly relations with the United
States. The errors of fact which have been committed in
the course of former negotiations, have been upon very im-
material points, not in the slightest degree affecting the
main question.
It is greatly to be lamented, however, that in America
it should have been the interest of dishonest and Violent
politicians to have adopted a tone of discussion upon the
subject opposed to its fair settlement. It is not honour-
able, while the title to the territcry is undetermined be-
tween the respective governments, to urge measures to
populate it with American citizens, in order to give faci-
lities for its occupation at a future period. Such recom-
mendations do not indicate a conviction of the validity of
the claim insisted on,, AmericL, as well as Great Britain,
has an interest in the establishment of a settled govern-
ment in that part of the world — in marking out the limits
of legal possession — and in rearing a population which,
however they nv^y differ respecting the system of govern-
ment which they may prefer, shall look to the future, as
bringing the fruits of a peaceful, generous, and civilized
intercourse. The dispute is one that ought not to excite
(
46
the exhibition of temper or of passion. It does not, as
yet, affect the trade, fortune, or interests of a single
American. The ambition of both governments ought to
be to decide it, so that peace — the greatest glory of
civilization — may be preserved. That this will be the
endeavour of the British government there can be no
doubt. Those who conduct the negotiation will make
it from a sense of honour and a care for the interests
of the world, and the/ will be sustained by the mighty
national resources, wliiich allow of the concessions that
have been made, and authorize them to insist upon what
is just.
It is stated, and probably correctly, that the British
government has offered to the government of the United
States to submit the dispute to the arbitration of some
foreign power. Nothing could be more proper, and no
measure could be suggested better calculated to ter-
minate it, amicably and satisfactorily. Some frantic
American politicians may oppose it, and may claim the
credit of very patriotic motives if they succeed in con-
tinuing what will soon become a very idle and useless
discussion , but even these men will be the first to
be condemned by their own countrymen, when the con-
sequences of their opposition shall interfere with fruits of
the honourable rewanis of labour, and those of commerce
which follow in the train of a generous and enlightened
system of diplomacy.
loes not, as
f a single
ts ought to
st glory of
vill be the
can be no
will make
e interests
ihe mighty
ssions that
upon what
;he British
he United
n of some
3r, and no
d to ter-
ne frantic
claim the
in con-
id useless
first to
the con-
fruits of
commerce
ightened
INDEX.
PAaB
The boundary of 1763, between
Louisiana and the British co-
lonies of America - - 6
Boundary of 1783, between the
British colonies of America
and the United States - 7
The sale of Louisiana, in 1803,
to the United States - - 8
Boundary of Louisiana undi^r
the Florida Treaty . . 9
The French boundary of Louis-
iana when sold in 1803 10-11
Alleged consequences of the
Florida Treaty of 1819 • 11
British title to the Oregon pre-
vious to 1819 - - - 12
Discoveries of Drake - -12
Spanish voyages, 1774 - - 19
Captain Cook's discovery of
Nootka Sound - - - 20
PACK
Captain Vancouver " takes pos-
session " of the coast - - 26
No "joint occupancy" of the
country by Spain and Great
Britain - - - - 26
Vancouver's proceedings at the
Columbia Kiver - - 27
Gray's discoveries - . 28-29
Conclusion from the fact of the
government of the United
States relying on Gray's dis-
coveries - . - 29-30
What is meant by " taking pos-
session" • - - - SO
Louis and Clarke's expedition 32
Astor's establishment on the
Columbia River - - 32
Astor's establishment unautho-
rised by the American govern-
ment ... 33-34
46
i\
1 1
the exhibition of temper or of passion. It does not, as
yet, affect the trade, fortune, or interests of a single
American. The ambition of both governments ought to
be to decide it, so that peace — the greatest glory of
civilization — ^may be preserved. That this will be the
endeavour of the British government there can be no
doubt. Those who conduct the negotiation w'.ll make
it from a sense of honour and a care for the interests
of the world, and they will be sustained by the mighty
national resources, which a'low of the concessions that
have been made, and authorize them to insist upon what
is just.
It is stated, and probably correctly, that the British
government has offered to the government of the United
States to submit the dispute to the arbitration of some
foreign powe; Nothing could be more proper, and no
meaeure couui be suggested better calculated to ter-
minate it., amicably and satisfactorily. Some frantic
American politicians may oppose it, and may claim the
credit of very patriotic motives if they succeed in con-
tinuing what will soon become a very idle and useless
discussion ; but even these men will be the first to
be condemned by their own countrymen, when the con-
sequences of their opposition shall interfere with fruits of
the honourable rewards of labour, and those of commerce
which follow in the train of a generous and enlightened
system of diplomacy.
ERRATA.
Page 40, line 17, erase «' that."
„ 41, „ S, for " by " read " to."
„ 42, „ 20, for <• disposition " read " disability."
„ 43, „ 16, for " malignancy" read "malignity."
„ 46, last lines, re'.d thus :— " when the consequences of their oddo.
silion shall interfere with the honourable rewards of labour
and those fruits of con)merce which follow in the train of a
generous and enlightened system of diplomacy."
I»
\
aes not, as
' a single
;8 ought to
t glory of
ill be the
»n be no
wd make
s interests
he mighty
sions that
upon what
\ie British
le United
1 of some
r, and no
1 to ter-
}e frantic
claim the
in con-
d useless
first to
the con-
Tuits of
ommerce
ightened
INDEX.
ppo>
our,
of a
TAQK
The boundary of 1763, between
Louisiana and the British co-
lonies of America
Boundary of 1783, between the
British colonies of America
and the United States - 7
Tlie sale of Louisiana, in 1803,
to the United States - . 8
Boundary of Louisiana under
the Florida Treaty • - 9
The French boundary of Louis-
i)ina when sold in 1803 10-11
Alleged consequences of the
Florida Treaty of 1819
British title to the Oregon pre-
vious to 1819 ...
Discoveries of Drake
Spanish voyages, 1774 -
Captain Cook's discovery of
Nootka Sound
Capture of British vessels at
Nootka ....
Right of making settlement on
the coast ...
*' Settlement " — what is implied
by the word ...
Application to parliament re-
specting the conduct of the
Spaniards at Nootka -
Convention of the Escurial
Convention not revokable
Effect of the word "settlement"
in the Convention
Captain Vancouver's expedition
to Nootka • . • - 26
6
11
12
12
19
- 20
20
- 20
22
23
24
24
• 25
PACK
Captain Vancouver « takes pos-
session " of the coast - - 26
No "joint occupancy" of the
country by Spain and Great
Britain - - - . 26
Vancouver's proceedings at the
Columbia Kiver . .27
Gray's discoveries - . 28-29
Conclusion from the fact of thu
government of the United
States relying on Gray's dis-
coveries ... 29-30
What is meant by " taking pos-
session" • - . . SO
Louis and Clarke's expedition 32
Astor's establishment on the
Columbia River . - 32
Astor's establidhmen'. unautho-
rised by the American govern-
ment ... 33.34
Negotiation between theUnited
Status and Great Britain re-
specting Astoria . 34-3j
Lord Castlereiigli's conduct on
the ratificatiun of the Florida
Treaty . . . 35 36
True boundaries of the British
possessions to the west - 37
Mr Farnham's argument on the
Tieaty of Utrecht
on the Treaty of Paris
Russian title to territory west
40
41
44
Ml
M
ff
0
\jf^
By the $ame Au^r, price 6s. 6d.f
ON THE DISCOVERY OF THE MISSISSIPPI,
And on the Sooth- Western » Oieeon, and North-Weatern
Boundary of the United States, with aTransIation of Original
MS. Memoirs, &o., relating to the Discovery of the Miwis-
pippi, by Robert Cavelier d« la Salle, and the Chevalier
Henry de Tonty.
'*Thit nripretending little volume contain! a oomplete, searching, and
succinct view of tlie Boundary questions, respecting which the United
States are now, or have been, in tf state of excitement."— Spectator.
** To those who desire to become acquainted with the Boundary ques-
tions of the United States, we recommend it as containing, in a very com-
pact form, all the information they can vdsh to have." — Imes, January 6,
1845.
** An elaborate and masterly treatise."— -Atlas, January 4, 1845.
*^The book is tail of the most valuable information and the most im-
portant details." — Morning Chronicle, January S6, 1845.
London: 1844. Samnel Clarke, 13 Pallmall East.
SISSIPPI,
ortb-Weatern
mofOriffioBl
>f the Miwis-
be Cbevalier
searching, and
ich the United
ktor.
lundary ques-
|In a very com-
tei, January 0,
[, 184S.
the moat im-
£a«t.
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11