The Oregon Territory Part 13

General line of Argument on either Side.--Original t.i.tle of the United States.--Nationality of a Merchant s.h.i.+p.--Mr. Buchanan's Statement.--Mr. Rush's View.--The Practice of Nations makes a Distinction between public and private Vessels.--Tribunals of the United States.--Laws of South Carolina.--The Distinction rests on the Comity of Nations.--It is not arbitrary, at the Will of each Nation, nor can it be disturbed.--Dr. Channing on the Character of Merchant s.h.i.+ps.--The taking Possession of a vacant Country for the Purpose of Settlement, is an Act of Sovereignty.--Mr. Gallatin's Letter to Mr.

Astor on the Flag.--Discoveries, as the Groundwork of Territorial t.i.tle, technical.--Lord Stowell.--Inchoate Acts of Sovereignty.--Vattel.--t.i.tle by Discovery, the Creature of the Comity of Nations.--Gray's first entering the Mouth of the Columbia does not satisfy the required Conditions.--Heceta's Discovery, in the popular sense of the Term.--Gray's the first Exploration of the Mouth.--Expedition of Lewis and Clarke.--Mr. Rush's Mis-statement in 1824, as to the Sources of the Multnomah, and of Clarke's River.--Inaccuracy in the Statements of Mr. Calhoun, and of Mr.

Buchanan.--The Great Northern Branch of the Columbia not called Clarke's River by Lewis and Clarke.--Clarke's River supposed by them to be a Tributary of the Tacoutche-Tesse.--The Tacoutche-Tesse reputed to be the northernmost Branch of the Columbia River till 1812.--Humboldt's New Spain.--Junction of the Lewis with the Columbia River.--The northernmost Branch of the Columbia first Explored by Thomson.--Lewis and Clarke did not encamp and winter on the north Bank of the Columbia.--Fort Clatsop on the south Bank.--Mr. Packenham's Counter-statement.--Settlements of the United States.--Mr. Calhoun's Statement.--Mr. Henry's trading Fort.--Failure of Captain Smith's Undertaking.--Mr. Astor's Adventure.--Astoria on the south Bank of the Columbia.--Rival Station of the North-west Company on the Spokan River.--Astoria not a national Settlement.--No Claim advanced to it by the United States in the Negotiations preceding the Florida Treaty.--Astoria transferred to the North-west Company by Sale.--The United States formally placed in possession of it in 1818.--Mr.

Calhoun's Argument.--Confusion of the Settlement with the Territory.--The Right of Possession.--The Question at issue in 1818.--Mr. Rush did not then a.s.sert a perfect t.i.tle.--Mr. Buchanan now maintains an exclusive t.i.tle.--The derivative t.i.tle of Spain.--Inconsistency of the United States Commissioners.--Effect of the Nootka Convention.--Contrast of the Claims of the Two Governments.--Mr. Calhoun's Admission as to Heceta's Discovery.--True Character of the original t.i.tle of the United States.--Not an exclusive t.i.tle.--Exclusiveness does not admit of Degree.--The t.i.tle of Spain imperfect by express Convention.--No Rights granted by the Nootka Convention.--Mr. Buchanan's Statement.--Examination of the Argument.--Opinions expressed in Parliament in 1790.--Mr. Pitt's Declaration.

The unexpected publication of the correspondence between Mr. Pakenham, the British Minister, and Messrs. Calhoun and Buchanan, the Secretaries of State at Was.h.i.+ngton, requires that the more important arguments in their respective statements should be briefly examined, lest the present inquiry should be thought incomplete. No substantially new topic seems to have been advanced during the negotiation, but the treatment of several points in the argument on either side was materially modified. The Commissioners of the United States appear on this occasion to have relied more immediately on the original t.i.tle of the United States than on the derivative Spanish t.i.tle which Mr. Rush first set up in 1824, or the derivative French t.i.tle which Mr. Gallatin brought forward in 1826. The British Minister, on the other hand, rested his position more decidedly on the recognition of the t.i.tle of Great Britain by the Convention of the Escurial, and less on the general proof of it by discovery and settlement.

In reference, then, to the original t.i.tle of the United States, Mr.

Calhoun, in his letter of September 3, 1844, grounded it on the prior discovery of the mouth of the Columbia River by Captain Gray, on the prior exploration of the river from its head-waters by Lewis and Clarke in 1805-6, on the prior settlement on its banks by American citizens in 1809-10, and by the Pacific Fur Company at Astoria in 1811, which latter establishment was formally restored by the British Government in 1818 to the Government of the United States. Mr. Buchanan, in his letter of July 12, 1845, having briefly recapitulated these alleged facts, says:--"If the discovery of the mouth of a river, followed up within a reasonable time by the first exploration of its main channel and its branches, and appropriated by the first settlements on its banks, do not const.i.tute a t.i.tle to the territory drained by its waters in the nation performing these acts, then the principles consecrated by the practice of civilised nations ever since the discovery of the New World must have lost their force. Those principles were necessary to procure the peace of the world.

Had they not been enforced in practice, clas.h.i.+ng claims to newly-discovered territory, and perpetual strife among the nations, would have been the inevitable result."

It may be as well to examine into the real character of these alleged facts, before considering how far they warrant the application of the principle of international law, to which Mr. Buchanan seeks to adapt them.

In regard to the discovery of the mouth of the Columbia River by Capt.

Gray, in the merchant s.h.i.+p Columbia, under the flag of the U. S., Mr.

Calhoun eluded the objection that the Columbia was not a _public_ but a _private_ s.h.i.+p, by simply observing--"Indeed, so conclusive is the evidence in his (Gray's) favour, that it has been attempted to evade our claim on the novel and wholly untenable ground that his discovery was made, not in a national but private vessel;" and so pa.s.sed on to other questions. Mr. Buchanan, on the other hand, devotes a few lines to the subject:--"The British plenipotentiary attempts to depreciate the value to the United States of Gray's discovery, because his s.h.i.+p was a _trading_ and not a _national_ vessel. As he furnishes no reason for this distinction, the undersigned will confine himself to the remark, that a merchant vessel bears the flag of her country at her masthead, and continues under its jurisdiction and protection, in the same manner as though she _had been commissioned for the express purpose of making discoveries_; besides, beyond all doubt, this discovery was made by Gray; and to what nation could the benefit of it belong, unless it be to the United States? Certainly not to Great Britain; and if to Spain, the United States are now her representative."

Mr. Rush had in a similar manner maintained, "That the s.h.i.+p of Captain Gray, whether fitted out by the Government of the United States or not, was a national s.h.i.+p. If she was not so in a technical sense of the word, she was in the full sense of it, _applicable to such an occasion_. She bore at her stern the flag of the nation, sailed forth under the protection of the nation, and was to be identified with the rights of the nation."

In both these statements it seems to be admitted, that there is a technical distinction in the nationality of a public s.h.i.+p and of a private s.h.i.+p; but it is maintained that _for the purposes of discovery_ a merchant s.h.i.+p, under the command of a private individual, is, in the full sense of the word, a national s.h.i.+p. This doctrine, however, finds no countenance in the practice of nations, which, on the contrary, makes a broad distinction between public and private vessels, in reference to all territorial questions. Thus the comity of nations attaches to the nationality of public vessels coming into the ports of a foreign sovereign different considerations from those with which it regards the nationality of private vessels. To go no further than the tribunals of the United States, "a public vessel of war, of a foreign sovereign, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of this country," (The schooner Exchange v. M'Faddon, 7 Cranch, 116: Supreme Court of the United States, 1812;) but a private merchant s.h.i.+p has not that courtesy extended to it, if it ventures _intra fauces terrae_. For instance, if a British merchant vessel should enter the port of Charleston, with free negro sailors on board, the nationality of the flag will not be sufficient to protect them from the operation of the munic.i.p.al law, which forbids liberty to the negro within the limits of South Carolina; and thus it repeatedly happens, that negroes or persons of colour arriving in the ports of South Carolina, though free subjects of her Britannic Majesty, and engaged _on board of a British merchant vessel_ in the service of the s.h.i.+p, have been by virtue of the _lex loci_ immediately taken from under _the protection of the British flag_, and thrown into prison. In an a.n.a.logous manner, if a merchant s.h.i.+p from Carolina should enter the port of London, with one or more negro slaves on board, the mercantile flag of the United States would not preclude them from the freedom which the soil of Great Britain imparts to all who come within its precincts.

A public vessel, however, is not ent.i.tled, _as a matter of right_, to any exemption from the jurisdiction of the sovereign whose territory she enters. For the jurisdiction of every nation within its own territory is exclusive and absolute, and all limitations to the full and complete exercise of that jurisdiction must be traced up to the consent of the nation itself. But the comity of nations regards a public vessel as representing the sovereignty of the nation whose flag it bears. If it therefore leaves the high seas, the common territory of all nations, and enters into a friendly port, it is admitted to the privileges which would be extended to the sovereign himself. One sovereign, however, can only be supposed to enter a foreign territory, as his sovereign rights ent.i.tle him to no extra-territorial privileges, under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. In a similar manner it is under an implied licence that a public s.h.i.+p enters the port of a friendly power, and retains its independent sovereign character, by the courtesy of the nation within the precincts of whose territorial jurisdiction it has placed itself. A private s.h.i.+p, on the contrary, entering the ports of a foreign power, has freedom of access allowed to it upon a tacit condition of a different kind, namely, that it becomes subject to the munic.i.p.al laws of the country. Hence every nation a.s.signs to its mercantile marine a distinct flag from that which its public s.h.i.+ps are authorised to exhibit as the _credential_ of their representing the sovereign power of the state.

This distinction between the signification of the respective flags is not arbitrary, at the will of each nation, but is recognised by the law of nations: whilst the mercantile flag imparts to the vessel which bears it a right to partic.i.p.ate in the privileges secured by commercial treaties with foreign powers, the public flag of a nation communicates the full character of sovereignty, and is respected accordingly. The commercial flag thus carries with it _nationality_, the public flag _the national sovereignty_.

It is as much out of the power of any particular state to disturb this distinction, and to attach to its mercantile flag, beyond the jurisdiction of its own territory, different considerations from those which the practice of nations has sanctioned, as to increase or diminish the list of offences against the law of nations. No individual nation can say, "That is our mercantile flag: such and such powers shall attach to it, because it is our pleasure that it should be so:" on the contrary, it is the practice of nations which defines those powers, and to that practice we must have recourse, if we would ascertain them.

In ill.u.s.tration of the above views, the following extract from Dr.

Channing's eloquent and able pamphlet on "the Duty of the Free States,"

will not seem out of place. It was suggested by the well-known case of the Creole:--"It seems to be supposed by some that there is a peculiar sacredness in a vessel, which exempts it from all control in the ports of other nations. A vessel is sometimes said to be 'an extension' of the territory to which it belongs. The nation, we are told, is present in the vessel; and its honour and rights are involved in the treatment which its flag receives abroad. These ideas are, in the main, true in regard to s.h.i.+ps on the high seas. The sea is the exclusive property of no nation. It is subject to none. It is the common and equal property of all. No state has jurisdiction over it. No state can write its laws upon that restless surface. A s.h.i.+p at sea carries with her, and represents, the rights of her country, rights equal to those which any other enjoys. The slightest application of the laws of another nation to her is to be resisted. She is subjected to no law but that of her own country, and to the law of nations, which presses equally on all states. She may thus be called, with no violence to language, an extension of the territory to which she belongs. But suppose her to quit the open sea, and enter a port, what a change is produced in her condition! At sea she sustained the same relations to all nations--those of an equal. Now she sustains a new and peculiar relation to the nation which she has entered. She pa.s.ses at once under its jurisdiction. She is subject to its laws. She is entered by its officers. If a criminal flies to her for shelter, he may be pursued and apprehended. If her own men violate the laws of the land, they may be seized and punished. _The nation is not present in her._ She has left the open highway of the ocean, where all nations are equals, and entered a port where one nation alone is clothed with authority. What matters it that a vessel in the harbour of Na.s.sau is owned in America? This does not change her locality. She has contracted new duties and obligations by being placed under a new jurisdiction. Her relations differ essentially from those which she sustained at home or on the open sea. These remarks apply, of course, _to merchant vessels_ alone. _A s.h.i.+p of war is an 'extension of the territory'_ to which she belongs, not only when she is on the ocean, but in a foreign port. In this respect she resembles an army marching by consent through a neutral country. Neither s.h.i.+p of war nor army falls under the jurisdiction of foreign states. _Merchant vessels resemble individuals._ Both become subject to the laws of the land which they enter."

The taking possession of a vacant country for the purpose of settlement is one of the highest acts of sovereign power, for a nation thereby acquires not merely "the _domain_, by virtue of which it has the exclusive use of the country for the supply of its necessities, and may dispose of it as it thinks proper, but also the _empire_, or the right of sovereign command, by which it directs and regulates at its pleasure every thing that pa.s.ses in the country," (Vattel, i., -- 204.) It is hardly necessary to add, that a commission from the sovereign alone will authorize the act of taking possession, so as to secure respect for it, _as a public act_, from other nations. Thus we find that, in the letter from Mr. Gallatin to Mr. Astor, elsewhere quoted, this principle was fully appreciated by Mr. Astor, when he applied, in 1816, for a commission from the government of the United States. "You mentioned to me that you were disposed once more to renew the attempt, and to re-establish Astoria, provided you had the _protection of the American flag_: for which purpose a _lieutenant's command_ would be sufficient to you. You requested me to mention this to the President, which I did. Mr. Madison said, he would consider the subject, and although he did not commit himself, I thought that he received the proposal favourably."

It remains to be considered whether the practice of nations has attached different considerations to the flag in respect to _discoveries_.

_Discoveries_, however, as forming the ground-work of territorial t.i.tle, are in themselves _technical_. They are _inchoate acts of sovereignty_.

"Even in newly-discovered countries," said Lord Stowel, in the case of the Fama, already cited, "where _a t.i.tle is meant to be established_, for the first time, some act of possession is usually done and proclaimed as a notification of the fact." It is not, therefore, the mere sight of land which const.i.tutes a discovery, in the sense in which the practice of nations respects it, as the basis of territorial t.i.tle; there must be some formal act of taking possession, which, as being an act of sovereign power, can only be performed through a commission from the sovereign. Thus Vattel, in the pa.s.sage so frequently quoted, says, "The practice of nations has usually respected such a discovery, when made by navigators who have been furnished with a _commission from their sovereign_, and meeting with islands or other lands in a desert state, have taken possession of them in the name of the nation."

The conditional t.i.tle by discovery is entirely the creature of the comity of nations; it has no foundation in the law of nature, according to which, if the discoverer has not occupied the territory, it would be presumed to remain vacant, and open to the next comer. For such purposes, however, the citizen or subject is not regarded as the instrument of his sovereign, unless he bears his commission, when his acts are respected as public acts, and are operative as between nation and nation.

It would thus appear that the first entering of the mouth of the Columbia River by Gray, being the act of a private citizen, sailing in a private s.h.i.+p for the purposes of trade, under the mercantile flag of his country, was not in the received sense of the word _a discovery_, which, according to the practice of nations, could lay the foundation of a t.i.tle to territorial sovereignty. It does not satisfy the required conditions upon which alone the comity of nations would respect it. When therefore Mr.

Buchanan says, "Besides, beyond all doubt this discovery was made by Gray, and to what nation could the benefit belong, unless it be to the United States," he a.s.sumes that the comity of nations will attach benefit to such a discovery, contrary to the practice of nations. It is thus unnecessary to decide to what nation the benefit will belong, in a case in which no benefit can be held to have resulted. On the other hand, it is admitted by both of the American Secretaries of State, that the _discovery_ of the mouth of the Columbia, in the popular sense of the word, was made by the Spanish navigator Heceta, some years before Gray visited the coast. It consequently follows that Gray achieved the first exploration, and not the discovery of the mouth of the river, even in the popular sense of the term.

In respect to the prior exploration of the Columbia River from its head-waters, by Lewis and Clarke, in 1805-6, Mr. Calhoun, having conducted the expedition, which had been despatched under the auspices of the Government of the United States in the spring of 1804, as far as the head-waters of the Missouri, states that "in the summer of 1805, they reached the head-waters of the Columbia River. After crossing many of the streams falling into it, they reached the Kooskooskee, in lat. 43 34', descended that to the princ.i.p.al _northern_ branch, which they called Lewis's; followed that to its junction with the great _northern branch_, which they called Clarke; and thence descended to the mouth of the river, where they landed, and _encamped on the north side, on Cape Disappointment, and wintered_." Mr. Buchanan, in referring to this part of Mr. Calhoun's argument, which he did not consider it necessary to repeat, observed that he had shown, "that Messrs. Lewis and Clarke, under a commission from their Government, first explored the waters of this river almost _from its head-springs to the Pacific, pa.s.sing the winter_ of 1805 and 1806 _on its northern sh.o.r.e_, near the ocean." These statements however do not correspond with the facts themselves which they profess to represent.

Mr. Rush, in the negotiations of 1824, had set up for the United States an exclusive claim to the whole territory between 42 and 51 north, on the ground that "it had been ascertained that the Columbia River extended by the River Multnomah to as low as 42, and by Clarke's River to a point as high up as 51, if not beyond that point." The obscurity in which the geographical relations of the Oregon territory were at that time involved, might, to a certain extent, excuse the mis-statement of Mr. Rush on this occasion, for, as already observed, it has been subsequently ascertained that the source of the Multnomah is in about 43 45', and that of Clarke's River, in 45 30'; but Mr. Calhoun's statement involves an historical as well as a geographical inaccuracy, which, under the circ.u.mstances, seems to have been intentionally put forward, since it is repeated by Mr.

Buchanan. It is presumed that in the copy of the correspondence which has been circulated in the public journals, and which has been published in a separate form by Messrs. Wiley and Putnam of Waterlooplace, there is a misprint in Mr. Calhoun's describing Lewis' River as the princ.i.p.al _northern_ branch, more particularly as Clarke's River is immediately after spoken of as the great _northern_ branch. Lewis' River must evidently have been intended to be described as the princ.i.p.al _southern_ branch, being the river on which the Shoshonee or Snake Indians fish, and which the travellers reached on descending the Kooskooskee. This inaccuracy may be pa.s.sed over as an error of the press, but in respect to the next a.s.sertion of Mr. Calhoun, that Lewis and Clarke followed this river to its junction with the _great northern branch, which they called Clarke's River_, it is not borne out by the account which Lewis and Clarke themselves give. On Friday, Sept. 6, Captain Clarke and his party reached the first river on the western side of the Rocky Mountains, to which they gave _the name of Clarke's River_, (Travels, ch. xvii.,) running from south to north, and which, from the account of the natives, they had reason to suppose, after going as far northward as the head-waters of the Medicine River, (a tributary of the Missouri,) turned to the westward and joined the Tacoutche-Tesse River. It must not be forgotten that the Tacoutche-Tesse, discovered by Alexander Mackenzie in 1793, was supposed to be the northernmost branch of the Columbia down to so late a period as 1812. Thus Alexander von Humboldt, in his New Spain, (l. i., c. 2,) writes:--"Sous les 54 37' de lat.i.tude boreale, dans le parallele de l'ile de la Reine Charlotte, les sources _de la riviere de la Paix_ (Peace River) ou d'Ounigigah, se rapprochent de sept lieues des sources du Tacoutche-Tesse, que l'on suppose etre identique avec la riviere de Colombia. La premiere de ces rivieres va a la mer du Nord, apres avoir mele ses eaux a celles du lac de l'Esclave et a celles du fleuve Mackenzie. La seconde riviere, celle de Colombia, se jette dans l'Ocean Pacifique pres du Cap Disappointment, au sud de Nootka-Sound, d'apres le celebre voyageur Vancouver, sous les 46 19' de lat.i.tude."

Mr. Greenhow (p. 285) says, "Three days afterwards they entered the princ.i.p.al southern branch of the Columbia, to which they gave the name of Lewis: and in seven days more they reached the point of the confluence with _the larger northern branch, called by them the Clarke_." Such, however, is not the account of the travellers, who state that, having followed the course of the Lewis River, they reached on the 16th of October its junction with the _Columbia River_, (chap. xviii.,) the course of which was "from the northwest," as Captain Clarke ascertained by ascending it some little distance. They nowhere, throughout the account of their travels, call this main river by any other name than the Columbia: they nowhere speak of it by the name of Clarke's River; it is a reflection on their memory to represent them as supposing that this great northern branch was the river to which they gave the name of Clarke, for they fully believed, when they reached the main stream, that they had reached the Tacoutche-Tesse of Mackenzie, and at the same time the Columbia of Gray and Vancouver, of which they considered Clarke's River to be merely a tributary. The names of Lewis and Clarke are totally unconnected with the great northern branch of the Columbia River, which was discovered and first explored from its sources in about 52 N. L., by Mr. Thomson, the surveyor or astronomer of the North-west Company, in 1811. This is an important fact, inasmuch as the exclusive claim of the United States was advanced in 1824, to the territory as far north as 51, expressly on the ground that Clarke's River extended as far north as that parallel, or even beyond that point, which is not the case. This northern branch, down which Mr. Thomson first penetrated, is ent.i.tled to be considered as the main branch of the Columbia, on the well-known principle that the sources most distant from the sea are regarded as the true sources of a river, according to which doctrine the name of Columbia has been in practice retained for this northern branch, whilst distinctive names have been given to all the southern tributaries.

Mr. Calhoun continues to say, "and thence they (Lewis and Clarke) descended to the mouth of the river, where they landed, and encamped _on the north side, on Cape Disappointment, and wintered_." The meaning of this pa.s.sage might be doubtful, unless Mr. Buchanan had cleared it up by his expression of "pa.s.sing the winter of 1805 and 1806 on _its northern sh.o.r.e_, near the ocean." When it is remembered that it is the possession of the _north bank_ of the river which is contested by the two parties to the negotiation; and that the incidents of this expedition are formally alleged, on the side of the United States, as forming part of the ground-work of their exclusive t.i.tle, and that the British negotiators have objected throughout to the alleged completeness of the t.i.tle of the United States, on the express ground that it is at best an aggregate of imperfect t.i.tles, and that the distinction between a perfect and imperfect t.i.tle is not one of _degree_, but of _kind_, it may not be unimportant to remark, that Lewis and Clarke pa.s.sed the winter of 1805-6 on the _southern sh.o.r.e_ of the Columbia, in an encampment on a point of high land on the banks of the river Netul. It is perfectly true that, having proceeded down the Columbia as far as the roughness of the waves would allow them, they landed on the north side on the 16th of November, and encamped on the sh.o.r.e near a village of the Chinnook Indians, just above high-water mark, where Captain Clarke remained for nine days, until Captain Lewis had succeeded in selecting a favourable spot for their winter's encampment; but the locality where they _encamped_ and _wintered, was on the south side of the Columbia_, amongst the Clatsop Indians, and from this very circ.u.mstance they gave to it the name of _Fort Clatsop_, which is so marked down in the map prefixed to the travels of Lewis and Clarke, with the further designation of "The wintering post of Captains Lewis and Clarke in 1805 and 1806." Had not Mr. Calhoun specified the locality of this winter's encampment as an element of the _c.u.mulative t.i.tle_ of the United States, and had not Mr. Buchanan repeated the statement of his predecessor more explicitly, it would not have been thought necessary to discuss the circ.u.mstances so fully; but as one object of this inquiry is to clear up the facts of the case, which, from the nature of the subject, are obscure, if this error of statement had not been pointed out, it might have tended to increase the existing intricacy of the question, more particularly when it has an official character impressed upon it. It can hardly be supposed to be an error of the press, since Cape Disappointment, which is on the north bank, is referred to by Mr. Calhoun as adjoining the spot where they "encamped and wintered."

The result of this inquiry cannot be better summed up than in the words of Mr. Pakenham's counter-statement:--"With respect to the expedition of Lewis and Clarke, it must, on a close examination of the route pursued by them, be confessed, that neither on their outward journey to the Pacific, nor on their homeward journey to the United States, did they touch upon the head-waters of the princ.i.p.al branch of the Columbia River, which lie far to the north of the parts of the country traversed and explored by them.

"Thomson, of the British North-west Company, was the first civilised person who navigated the northern, in reality the main branch of the Columbia River, or traversed any part of the country drained by it.

"It was by a tributary of the Columbia that Lewis and Clarke made their way to the main stream of that river, which they reached at a point distant, it is believed, not more than 200 miles from the point to which the river had been previously explored by Broughton.

"These facts, the undersigned conceives, will be found sufficient to reduce the value of Lewis and Clarke's exploration on the Columbia to limits, which would by no means justify a claim to the whole valley drained by that river and its branches."

Mr. Calhoun next proceeds to state the grounds on which, as alleged, priority of settlement was no less certain on the side of the United States:--"Establishments were formed by American citizens on the Columbia as early as 1809 and 1810. In the latter year a company was formed at New York, at the head of which was John Jacob Astor, a wealthy merchant of that city, the object of which was to form a regular chain of establishments on the Columbia River, and the contiguous coasts of the Pacific, _for commercial purposes_. Early in the spring of 1811, they made their first establishment on the south side of the river, a few miles above Point George, where they were visited in July following by Mr.

Thomson, a surveyor and astronomer of the North-west Company, and his party. They had been sent out by that company to forestall the American company in occupying the mouth of the river, but found themselves defeated in their object. The American company formed two other connected establishments higher up the river: one at the confluence of the Okanegan with the north branch of the Columbia, about 600 miles above its mouth, and the other on the Spokan, a stream falling into the north branch, some fifty miles above."

Mr. Calhoun, in making the above general allusion to establishments formed in 1809 and 1810, may be supposed to refer to a trading post founded by Mr. Henry, one of the agents of the Missouri Fur Company, on a branch of the Lewis River, the great southern arm of the Columbia. This post, however, was shortly abandoned in consequence of the hostility of the natives, and the difficulty of obtaining supplies, (Greenhow, p. 292.) It would, however, be rather an overstrained statement to describe this hunting station as an establishment formed on the Columbia, considering its very great distance from the junction of the Lewis River with the Columbia. Mr. Calhoun, however, may be alluding at the same time to the undertaking of Captain Smith, in the Albatross, in 1810, who is said by Mr. Greenhow to have attempted to found a trading post at Oak Point, on the south side of the Columbia, about forty miles from its mouth, and to have almost immediately abandoned the scheme. Such an attempt, however, can hardly be ent.i.tled to the character of a settlement. Beyond these two instances, it is believed that there is no occasion on record of the presence of citizens of the United States on the west side of the Rocky Mountains, during the years of 1809-10, which could give rise to the supposition of an establishment having been formed by them.

In respect, however, to Mr. Astor's Adventure, the Pacific Fur Company was a mere mercantile firm, the formation of which originated with Mr. Astor, a German by birth, and ultimately a naturalized citizen of the United States. The original company was formed in 1810, and, according to Mr.

Was.h.i.+ngton Irving, consisted of Mr. Astor himself, three Scotchmen, who were British subjects, and one native citizen of the United States. Three more Scotchmen, and two more citizens of the United States were subsequently admitted, so that the majority of the company were British subjects, and they had received an express a.s.surance from Mr. Jackson, the British Minister at Was.h.i.+ngton, that "in case of a war between the two nations, they would be respected _as British subjects and merchants_,"

[Greenhow, p. 295.] Mr. Astor stipulated to retain half the shares for himself, and in return to bear all the losses for the first five years, during which period the parties had full power to abandon and dissolve the a.s.sociation. A detachment of the partners arrived at the Columbia River in 1811, and formed a trading establishment on the southern bank of the river, on Point George, not far from the mouth, which they named Astoria.

Mr. Was.h.i.+ngton Irving, who had his information from Mr. Astor himself, terms their establishment "a trading house," [Chap. ix.] Not long after their arrival they received information from the Indians, that the North-west Company had erected a trading house on the Spokan River, which falls into the north branch of the Columbia, and they were preparing to dispatch a rival detachment to act as a counter-check to this establishment, when Mr. David Thomson, with a party under the protection of the British flag, having descended the Columbia from its northernmost source, arrived at Astoria. On his return Mr. Stuart, one of the partners of the Pacific Fur Company, accompanied Mr. Thomson's party a considerable distance up the Columbia River, and established himself for the winter at the junction of the Okanegan with the Columbia, at about 140 miles from the Spokan River; here Mr. Stuart, according to Mr. Was.h.i.+ngton Irving, considered himself near enough to keep the rival establishment in check.

It would thus appear that the earliest settlement on the Spokan River was made by the North-west Company, and from Mr. Was.h.i.+ngton Irving's account, seems almost to have preceded the foundation of Astoria; for whilst the Astorians were occupied with their building, they heard from the Indians that white men "were actually building houses at the Second Rapids." If, however, it was not antecedent, it was at least contemporaneous.

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

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

It was admitted by Lord Castlereagh, in the discussions with Mr. Rush antecedent to the restoration of Astoria, that the United States were ent.i.tled to be reinstated there, and "to be the party in possession _whilst treating of the t.i.tle_." At that time the United States had confined their claims to the rest.i.tution of a post, which, as they a.s.serted, "had been established by them on the Columbia River, and had been taken during the war, and consequently came within the provisions of the first article of the Treaty of Ghent." Mr. Bagot, in his reply to Mr.

Adams, of 26th November, 1817, (British and Foreign State Papers, 1821-22, p. 461,) stated that, "from the reports made to him, it appeared that the post had not been captured during the late war, but that the Americans had retired from it under an agreement made with the North-west Company, who had purchased their effects, and who had ever since retained peaceable possession of the coast." The whole discussion was thus evidently limited to the settlement at Astoria; and Lord Castlereagh admitted, on the statement of the United States, that they had a prima facie claim to be reinstated in the post, in conformity to the provisions of the treaty, and _to be the party in possession whilst treating of the t.i.tle_.

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

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

Such is the outline of the grounds on which the United States set up an exclusive t.i.tle to the entire valley of the Columbia, that is, a t.i.tle to exclude Great Britain from making settlements there. Mr. Buchanan observes, that this t.i.tle is "older than the Florida Treaty of February 1819, under which the United States acquired all the right of Spain to the north-west coast of America, and exists independently of its provisions.

Even supposing, then, that the British construction of the Nootka Sound Convention was correct, it could not apply to this portion of the territory in dispute. A convention between Great Britain and Spain, originating from a dispute concerning a petty trading establishment at Nootka Sound, could not abridge the rights of other nations. Both in public and private law, an agreement between two parties can never bind a third, without his consent, expressed or implied."

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

If, on the other hand, the United States had an _exclusive t.i.tle_ to the valley of the Columbia before the Treaty of Florida, or in other words, as a.s.serted in 1824, to the entire territory between 51 and 42, and that t.i.tle existed independently of its provisions, it is difficult to understand the object of the protracted negotiations between Don Luis de Onis and Mr. Adams, which resulted in his Catholic Majesty first withdrawing from the Rocky Mountains to the Columbia River, then from the Columbia to the Multnomah or Willamette River, and finally ceding all his rights, claims, and pretensions to the territory north of the parallel of 42. Mr. Buchanan's position is untenable in the face of the negotiations antecedent to the Florida Treaty.

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

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

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

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

The effects of the Nootka Convention, or rather Convention of the Escurial, have already been discussed in the two preceding chapters. Mr.

Buchanan, in his letter of July 12, 1845, says, "Its most important article (the third) _does not even grant in affirmative terms the right_ to the contracting parties to trade with the Indians and to make settlements. It merely engages in negative terms, that the subjects of the contracting parties 'shall not be disturbed or molested' in the exercise of _these treaty-privileges_." Surely there is a contradiction of ideas in the above pa.s.sages. How can the right to trade with the Indians and to make settlements be termed a _treaty-privilege_ in the latter sentence, when in the former sentence it is expressly denied to have been _granted_ by the treaty? Mr. Buchanan, however, in a.s.serting that the third article did not _grant in affirmative terms the right_ specified in it, adopts precisely the same view that the British commissioners have throughout maintained; namely, that the third article did not contain a _grant_, but a mutual _acknowledgment_ of certain rights in the two contracting parties, with respect to those parts of the north-western coast of America not already occupied. Mr. Buchanan, however, in a subsequent letter says, "The Nootka Convention is arbitrary and artificial in the highest degree, and is anything rather than the mere acknowledgment of simple and elementary principles consecrated by the law of nations. In all its provisions it is expressly confined to Great Britain and Spain, and acknowledges no right whatever in any third Power to interfere with the north-west coast of America. Neither in its terms, nor in its essence, does it contain any acknowledgment of _previously subsisting territorial rights_ in Great Britain, or any other nation. It is strictly confined to future engagements, and these are of a most peculiar character. Even under the construction of its provisions maintained by Great Britain, her claim does not extend to _plant colonies_, which she would have had a right to do under the law of nations, had the country been unappropriated; but it is limited to a mere right of joint occupancy, not in respect to any part, but to the whole, the sovereignty remaining in abeyance. And to what kind of occupancy? _Not separate and distinct colonies, but scattered settlements_, intermingled with each other, over the whole surface of the territory, for the _single purpose of trading_ with the Indians, to all of which the subjects of each Power should have free access, the right of exclusive dominion remaining suspended. Surely, it cannot be successfully contended that such a treaty is 'an admission of certain principles of international law,' so sacred and so perpetual as not to be annulled by war. On the contrary, from the _character of its provisions_, it cannot be supposed for a single moment that it was intended for any purpose but that of a mere _temporary arrangement_ between Great Britain and Spain.