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The claims to the Oregon territory considered Thom, Adam, 1802-1890 1844

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       THE
CLAIMS
TO  THE
OREGON  TERRITORY
CONSIDERED.
BY   ADAM   THOM,   ESQ.,
RECORDER OF RUPERT'S LA.ND.
LONDON:
SMITH, ELDER AND CO., 65, CORNHILL.
1844.
[Price One Shilling.']
  PREFACE.
About three years ago, a Memoir on the subject of
the Oregon Territory, drawn up by Mr. Greenhow,
Translator and Librarian to the department of
State, was printed and published by order of the
Senate of the United States.
In this rather elaborate work, Mr. Greenhow has,
with laudable industry and no deficiency of zeal,
collected information respecting the North-west
coast of America, from various sources and of
various degrees of value,—his object being, as he
himself states, to shew the origin, nature, and
extent of the several claims to the disputed territory, in order to afford the means of correctly estimating the justice of each.
Some of the most important statements in thfs
publication are erroneous; others admit of dispute ;
 IV
PREFACE.
but, for argument's sake, they are assumed as correct by the writer of the following disquisition, who
proposes to shew, from materials furnished by the
Americans themselves, that the claim of Great Britain to the Oregon territory is superior to theirs.
It is important that this basis of the argument
should be borne in mind, because if the writer has
succeeded in making out his case, it will be the
stronger from being founded on the admissions of
an adversary. If, on the other hand, he shall be
considered as having failed, the rights of Great
Britain will have sustained no damage in his hands.
The question is still open to discussion, and future
inquirers may, by pursuing a different course, and
proceeding on a more correct statement of facts,
place the British claim on much higher ground than
the very limited plan which he has proposed to
himself permits.
 THE  OREGON  TERRITORY.
That vast tract of Western America, which is
conventionally held in common by Great Britain
and the United States, is thus bounded. Besides
the natural limits of the Pacific Ocean, the Rocky
Mountains, and the Arctic Sea, it is separated from
Mexico by the parallel of 42°, and from Russian
America by a line^ which begins at the lower extremity of Prince of Wales' Island, on the parallel
of 54§°, ascends the Portland Channel to the parallel
A
of 56°, runs in the general direction of the coast,
at a distance never exceeding ten leagues, as far as
the meridian of 141°, and then follows the said
meridian to the polar ices. But the actually disputed territory is far less extensive towards the
North, for though the British have urged arguments
which, if good at all, are good as far as the southern
boundary, yet the Americans have never claimed, as
against England, beyond the parallel of 51°, or,
even as against Russia, beyond the parallel of 54§°.
Taken, therefore, in its widest sense, the disputed
territory lies between the Pacific ocean, the Rocky
I
 J&
Mountains, and the respective parallels of 42° and
54§°, being about four times as large as the British
Isles.
In the following brief sketch, the North-west coast
is understood to comprise all that is to the north of
the Mexican Republic, as Russian America may
sometimes serve the purposes of argument and illustration.
In Russian America, the prominent names are
those of Port Bucareli, in about 55°; of Mount
Edgecumbe, near Sitka, in about 57° ; of Mount
St. Elias, in about 60°; of Prince William's Sound,
Cook's Inlet, and the Peninsula of Aliaska, all
three lying in succession to the westward; and in
the disputed territory the prominent names are those
of the Columbia, in about 46° ; of Bulfinch's Harbour, in about 47°; of the Strait of Fuca, in about
48J ; of Nootka Sound, in about 49^°.
Partly in the disputed territory, and partly in
Russian America, lies the North-west Archipelago,
stretching, on the outer coast, from Cape Flattery,
in about 48j°, to Cape Spencer, in about 58J°;
but, on the inner coast, extending from the bottom
of Puget Sound, in about 47°, to the bottom of
Lynn Channel, in about 59°? and at least tripling
those twelve degrees by the river-like indentations
of its continental shore. It presents to the ocean
its principal islands, namely, those of Vancouver,
near Cape Flattery, Queen Charlotte, Prince of
Wales, and King George the Third,  near Cape
 Spencer,—the last of the four, however, being now
known to be divided into two,—while it bewilders
the, mainland with its countless stars of inferior
magnitude ; and, to mark its political distribution as
summarily as possible, its outer coast falls to Russian
America and to the disputed territory in the proportion of one to two.
Towards the interior, the disputed territory may
be differently distributed, according as its rivers or
its mountains are taken as the fixed lines of demarcation. By two ranges of lofty heights that run
nearly parallel with the longitudinal boundaries, it is
distributed into three regions, diminishing as to
agricultural value not less decidedly than as to its
commercial importance, in the order of lower,
middle, and upper ; and with reference to its
streams, it may be considered to be distributed into
three sections of unequal size, the Columbia valleys
occupying to a fraction the whole of the upper
region, the greater part of the middle, and a very
small portion of the lower ; the Southern valleys,
that empty their waters at once into the open ocean ;
and the Northern valleys, that are screened by
the great Archipelago, with the great Archipelago
itself.
To the disputed territory there are, or at least
have been, three civilized claimants, Spain, England, and America; and the writer proposes to test
their respective pretensions on all the possible
grounds  of discovery, settlement, contiguity, and
b 2
 convention, drawing his materials from Greenhow's
elaborate exposition of the claim of the United
States,* and assuming, for the sake of argument, the
facts to be as stated in that publication, but by no
means admitting that the claims of the respective
parties are therein fairly set forth.
-Jt       DISCOVERY.
Discovery exclusively confers, not an actual right
of property, but a contingent right of possession.
The exclusive character, however, of this contingent right, may be barred by delay or by waiver,
though neither bar can be pleaded in negociation by
a competitor, who has not himself acquired some
claim or other.
But there may be, with respect to one and the
same country, a conflict of discoveries, each prior to
the rest as to some section or other. The earliest
discoverer is generally satisfied with such a glance
of salient points, as in most cases leaves very much
to be discovered by his followers in the same
path,—the north-west coast itself perhaps furnishing
the most appropriate variety of examples as to the
relative merits of successive visitors. The southern
half of the disputed territory must have revealed
nearly all its truths to the first navigator that passed
* Memoir, Historical and Political, of tbe North-west Coast of
North America, and the adjacent Territories; illustrated by a
Map and a Geographical View of those Countries. By Robert
Greenhow, Translator and Librarian to the Department of State.
Pp. 228, 8vo.    Wiley and Putnam, New York and London.
 along its shores, for it exposes the unbroken face of
the solid continent to the Uninterrupted surf of the
open ocean, having only one island, and that hardly
worthy of the name, and only two inlets, and those
inaccessible at all times to large ships, and accessible to small vessels merely in such weather as renders refuge unnecessary. The northern half of the
disputed territory, and the lower portion of Russian
America, after having long been taken by the navigators of various nations as a part of the continent,
were gradually discovered to be the insular breastwork of a matchless labyrinth of sheltered deeps;
and the upper part of Russian America, whose far-
jutting headlands were naturally enough viewed by
those, who first came upon them from the West, as a
continuation of the Aleutian Isles, was subsequently
moulded into a continent by the zeal and perseverance of Cook. In the last two cases, an exclusive claim, on the ground of the original discovery
to that, which the original discoverer had not seen,
and had not even imagined, would be fully as absurd
as the exclusive claim which Spain set up to the
whole of the western coast, on the grounds,—truly
magnificent in themselves,—of having first discovered America, the Pacific, the Strait of Magellan,
and the passage from the Philippines to Mexico,—
of having first discovered, in short, nearly all the
contiguous land, and almost every avenue of approach by water.
Under all these circumstances, discovery involves
 6
neither a very definite nor a very powerful claim.
It has been well described by Vattel, in the 208th
paragraph of his first book :—
" The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries,
except those of which it has really taken actual possession, in
which it has formed settlements, or of which it makes actual use.
In effect, when navigators have met with desert countries in
which those of other nations had, in their transient visits, erected
some monument to shew their having taken possession of them,
they have paid as little regard to that empty ceremony, as to
the regulation of the popes, who divided a great part of the
world between the crowns of Castile and Portugal."
With these preliminary observations as a guide,
the writer submits the facts in chronological order.
DISCOVERIES.
Date. extent. Nation.
1543      Ferrelo to 43°. S.
1579 Drake from 48° or 43° to 38J°, coasting but not E.
exploring. The evidence is rather in favour of the
forty-eighth degree as the point of commencement.
The famous voyage published in 1589, by one of
Drake's companions, speaks indeed of the extreme
limit as "being in 43° of the pole arctic;" but
the writer, more particularly as his immediate object
was to shew the intensity of the cold, most probably
meant to express the polar distance,—the substitution of within for "«V being all that would be
wanted to render the expression perfectly perspicuous.
But the context supports, as well as suggests this
supposition by contrasting "in 43° of the pole
arctic" with " within 38° towards the line.
Again, Fletcher's Journal, published in 1652, as the
main text of " The World Encompassed," distinctly
gives 48°, without referring to any discrepancy
between itself and " The Famous Voyage."
 DISCOVERIES.
extent.
Date. Nation.
1592     Fuca, entering a strait between 47° and 48°, and   S.
passing many islands, reached the Atlantic.
The discovery of the north-west Archipelago induces one to suppose that this romance may have
been founded on fact. In other words, Fuca may have
entered a strait of nearly the specified latitude, and
passed many islands, and reached the Pacific. The
general correctness, however, of the old pilot courses,
while it adds probability to this view of the case, is
quite irreconcilable with his own belief of the fabulous side of the story, particularly as, instead of
going across to Spain, he returned the way he had
gone.
1603      Aguilar to 43°,—discovering near his highest limit    S
a promontory and a river.    Considering how little
further Aguilar advanced than Ferrela had advanced
in 1543, his details, though somewhat incongruous,
do not require discussion.
1640 Fonte, near the parallel of 53°, passed through S.
what he called the Archipelago of San Lazaro into what
he called the Rio de los Reyes, and so on through
lakes and rivers till he reached the Atlantic, and
there met a ship that had come from Boston, in
Massachusetts, by a northerly course. But, like
Fuca, Fonte retraced his steps.
Fonte's romance, as well as Fuca's, may have
been founded on fact, exhibiting, however, far more
of an inventive genius. Perhaps neither of them
would have been worthy of notice, had not Spain,
in 1818, gravely urged both of them in support of
its territorial claims.
1774     Perez to 53°, generally coasting, but never ex-    S.
ploring.    In 49^° he discovered what he called the
Port of San Lorenzo, probably the same as Nootka
Sound; and he was, in 1789, reported by his pilot
Martinez, to have entered the Strait of Fuca,—two
o
 8
DISCOVERIES.
Date.
1775
1775
1777
1779
1787
1787
EXTENT.
Nation.
years, be it observed, after Berkeley had actually
entered it.
Heceta discovered the opening, which was subse-    S.
quently ascertained to be the mouth of the Great
River of the West, and which meanwhile was sometimes known as Entrada de Heceta and sometimes as
Rio de San Roque. J&
Bodeya and JiijOaurelle to 58°, exploring as well as S.
coasting. They were thus the first discoverers of the
south-easterly portion of Russian America, and more
particularly of Mount Edgecumb and Port Bucareh,
respectively the best land-mark and the best harbour
on the coast.
Cook carefully explored to 48°, discovered, saving J2.
the then unknown claim of Perez, Nootka Sound,
passed onward without seeing land to Mount Edgecumb, surveyed Russian America from Mount St.
Elias to the shores of the Arctic Ocean, and ascertained that the two continents were separated by a
strait, through which Beering had sailed without
knowing it to be such, doing far more to determine
the direction and extent of the nortlh-west coast than
all his predecessors, Spanish, English and Russian, put
together.
Arteaya, Bodeya, and Matirelle, having previously    S.
made the land qnly at Port Bucareli, followed Cook's
footsteps from Mount St. Elias as far as Prince William's Sound.
Berkeley discovered the Strait of Fuca. E.
To evade the East India Company's and South Sea
Company's privileges, Berkeley carried the Austrian
Flag. 2
Dixon, on strong grounds of suspicion, concluded    E.
that the coast, which Jay to the north of 51°, was
separated from the continent, and named it after his
own ship, Queen Charlotte's Island.,.
 9
DISCOVERIES.
EXTENT.
Date. Nation.
1788 Meares, carrying-Ifortuguese colours for purposes E.
of evasion, penetrated into the Strait of Fuca somewhat farther than Berkeley, and, after approaching
Heceta's Rio de San Roque into seven fathoms of
water, was induced to deny the existence of the river
in question oh account of an apparently continuous
barrier of breakers.
1788 Martinez, sailing from San Bias, made directly for    S.
Prince William's Sound, with the view, rather political than geographical, of observing the easterly progress of the Russian posts.
1789 Gray advanced into the Strait of Fuca still farther   A.
than Meares; and, having just discovered what he called
Pintard's Sound in 51°, he was led to conclude that
the two inlets met and separated Nootka Sound territory from the continent. During the same season
Gray also verified Dixon s similar surmise by circumnavigating Queen Charlotte's Island.
1789 Duncan discovered the Princess Royal group be-    E.
tween Queen Charlotte's Island and the continent.
1790 Fidalgo again explored from Mount St. Elias to    S.
the Peninsula of Aliaska.
1791 Malaspina examined the coasts north of Nootka    S.
Sound.
1791      Quimper and Elisa explored the southern reach of    S.
the Strait of Fuca.
1791      Gray discovered, and partly explored, the Portland    A.
canal, taking it to be Fonte's Rio de los Reyes.
1791      During preceding years, the Canadian traders had    E.
pretty accurately determined the general direction of
the inland boundary, by exploring the McKenzie and
the western feeders of the Mississippi.
1791      Kendrick discovered a second outlet from Nootka    A.
Sound into the Pacific.
1791      Ingraham and others surveyed portions of Queen   A
Charlotte's Island.
aa
 10
DISCOVERIES.
EXTENT.
. Date. Nation.
1792     Caamans explored the north-west Archipelago from    S.
52° to 56°.
1792      Vancouver surveyed the whole coast up  to the   E.
April Strait of Fuca, being deterred from entering Heceta's
Rio de San Roque, partly by the breakers that extended across its mouth, and partly by an erroneous
estimate of the size of the stream or streams within.
Vancouver, however, sagaciously pronounced, that
at best the river or inlet must be " a VERY IN-
I TRICATE one," and not a « SAFE NAVIGABLE
opening, harbour, or place of security for shipping"
of «OUR BURTHEN."   <lil|fc        :|j   -       -%;
1792      Gray, after discovering Bulfinch's, or Gray's, or   A.
May Whidbey's Harbour, entered Heceta's Rio de San
Roque, having in the previous year attempted, with
as little success as Meares or Vancouver, to do so for
nine successive days. Gray found " the channel very
narrow," and " not navigable any farther up " than
about | fifteen miles,** even for the Columbia, of 220
tons.
1792      Vancouver prosecuted his survey along the Strait   E.
May of Fuca, falling in with a secure harbour, named by
him Port Discovery, and exploring as well as discovering the southern inlets of the Strait, to the very
head of Puget's Sound.
1792 June, July, and August.—-Vancouver verified Gray's    E.
surmise, that Nootka Sound territory was an island,
giving it the names of Quadra and Vancouver.
, 1792      Galiano and Valdez first accompanied, and then    S.
followed Vancouver, in his researches of June, July,
and August.
1792      Whidbey, one of Vancouver's ofiicers,  surveyed   E.
Oct. Bulfinch's, or Gray's, or Whidbey's Harbour, ascertaining it to be " a safe retreat for small vessels."
1792      Broughton, one of Vancouver's ofiicers, surveyed   E.
Oct. the Columbia River, for upwards of a hundred miles
 11
DISCOVERIES.
EXTENT.
Date.
Nation.
1793
1793
1794
1805
E.
E.
from its mouth. Vancouver's own ship was " unable
to cross the bar;" and Broughton's vessel, after almost
immediately running aground, was ultimately left
" about four miles from the mouth,,, because u the
channel proved to be so intricate."
Vancouver surveyed the remainder of the north-west
Archipelago, above Quadra and Vancouver's Island,
with great skill and untiring patience.
Mackenzie crossed the hitherto untrodden Rocky
Mountains, descended part of the Tacoutche Tesse,
a large river, whose mouth is in 49°,-—about 5° farther south than the most northerly sources of the
Columbia,—and then bv land reached the Pacific in
52^°,—thus exploring, with undaunted courage, the
breadth of the country at the very same time that
Vancouver was surveying its length with luminous
precision.
Vancouver carefully examined Cook's Inlet, finding
Cook's River to be a misnomer, and Prince William's
Sound.
Lewis and Clarke crossed the Rocky Mountains
nearly on the parallel of the mouth of the Columbia,
in search of any convenient "water-communication
across the continent for the purposes of commerce,"
and, embarking on one of the tramontane streams,
reached the known portion of the Columbia by
means of the southern branch of that river.
Thompson, of the North-west Company, descended   E.
the northern branch of the Columbia to the newly-
established Fort of Astoria.
1811-12   Hunt crossed the Rocky Mountains much lower
down than Lewis and Clarke, — thus traversing a
larger portion of the valley of the southern branch.
A.
1811
A.
 12
To simplify the application of the foregoing
facts, the inland border, the interior country, and
the maritime boundary will be separately considered.
As to the inland border, its direction and position
were pretty accurately ascertained by the English,
while as yet hardly a single American had crossed
the Mississippi, and while the Spaniards, even
though Louisiana was 4fceir own, had approached
only the most southerly sources of its western
waters.
As to the interior country, if supposed to be
divided by mountains into regions as aforesaid,
Broughton first crossed the Lower, Mackenzie first
crossed the Middle, and Lewis and Clarke first
crossed the Upper,—Spain having done nothing,
and America having at most done only half as
much as England. On a liberal estimate, however,
Mackenzie had anticipated Lewis and Clarke, for
he was the first to cross the upper region, as well as
the middle one, though perhaps not below the
parallel of 54§°, the northern limit, as aforesaid, of
the disputed territory.
As to the interior country, if supposed to be
divided with reference to rivers into sections as
aforesaid, Spain has again done nothing, England
has been the first explorer of the southern valleys,
and the sole explorer of the northern valleys,
while England and America have divided between
them the exploring of the Columbia valleys, the
northern branch being a match for the southern and
 13
Broughton's portion of the united stream being at
least equal to that of Lewis and Clarke.
|lAs to the maritime boundary, the priority of
vague discovery, the extent of accurate discovery,
and the value of detached discoveries will be discussed in order.
With respect to the priority of vague discovery,
England probably has, through Drake, the best of
it for the lower half of the disputed territory, while
Spain, if not through Fuca and Fonte, at least
through Perez and Bodeya and Maurelle, certainly
walks the course for the upper half,—those two
kingdoms having in this sense discovered the whole
coast before America existed as a nation.
With respect to the extent of accurate discovery,
Vancouver undeniably secured the first place for
England, leaving Bodeya and Maurelle, and some-
others, at an immeasurable distance, to plant Spain,
the second on the list, with the young Republic not
very far:behind.
With respect to the value of detached discoveries,
Spain must leave the field to be contested between America and England. Nootka Sound, (for
Perezes prior claim, besides being too long concealed from the world, cannot be established by
proof,) is as superior to the Haven of the Columbia,
as Port Discovery is to Bulfinch's Harbour, while
the Strait of Fuca, pregnant with the widest system
of inland navigation in the world, and its grand tributary, the Tacoutche Tesse, are at least equal, for
 14
1*1
the purposes of internal communication, to the
waters of which the Haven of the Columbia is the
only outlet.
But if Cook's discovery of Nootka Sound was
possibly anticipated by Perez's discovery of the
Port of San Lorenzo, Gray's discovery of the Columbia was certainly anticipated by Heceta, according to the testimony of Greenhow himself.
Both in his "Table of Contents'1 and in his
" Index," where theory seems to have been forgotten, Greenhow uses the following expressions :—
" Heceta discovers the mouth of a river, named by
him San Roque, now called the Columbia;" " Gray
discovers Bulfinch's Harbour, and enters the
great river;" "Heceta discovers the mouth of the
Columbia;" " Gray discovers Bulfinch's Harbour
—enters the Columbia River."
Even in his text, Greenhow chiefly constructs
Gray's pedestal out of the failures of Meares and
Vancouver. Now Vancouver and Meares failed to
enter the river which Heceta bad discovered, because
they saw before them a continuous barrier of breakers ; and, if they had gone farther, they would in all
probability not have lived to tell the tale, for, according to Greenhow, " circumstances" even now 8 render
the entrance and the departure of vessels hazardous
at all times, and almost impossible when the
winds are high." Gray confessedly succeeded,
because, on his first visit, the outward current, which
was then so high as to ride over the flood-tide, not
 15
only gave him assurance doubly sure of a river within
but also guided him to the sometimes practicable gap
in'the bar..
Farther, Greenhow erroneously assumes, that, but
for Gray's truly creditable courage and perseverance,
"the existence of the great river would doubtless
have remained unknown for a longer time." Now
"the existence of the great river," besides having
long been an object of universal faith, might have
been ascertained by interrogating on the subject the
first native that might have been seen in Puget Sound
or even in the Strait of Fuca. Puget Sound is
not above fifty miles from the Columbia, nor above
half that distance from its lowest feeder, the Coulitz;
while from the Strait of Fuca, according to Washington Irving, sturgeon-fishers periodically visit
the Columbia. A savage's knowledge of topography necessarily surpasses that of an illiterate
member of civilised society. Thus the tribes on the
Tacoutche Tesse, that lived at least three hundred
miles from its mouth, assured Mackenzie, though he
was prevented from believing them by his opinion as
to its being the great river of the West, that it did
not fall into the open ocean; and the tribes of the
Rocky Mountains, that seem all to have occupied
both sides of the height of land, were doubtless the
source of all the vague tidings of an Oregon, that
pervaded the popular mind.
Now to bring to an issue the respective pretensions
of the three claimants, so far as such pretensions
 16
rest on discovery, England is considerably superior to Spain, and infinitely superior to America,
with respect to the two maritime sections, namely, the
Southern Valleys and the Northern Valleys; while
with respect to the section whose vertex alone touches
the ocean* namely the Columbia Valleys, America
approaches more nearly to an equality with England,
with but little opposition on the part of Spain.
More fully to discuss the last question, as being
the only one that is susceptible of doubt, Gray's
discovery, if discovery it was, of the mouth of the
river could not carry the American claim up to its?
sources, as the Americans themselves have both positively and negatively admitted by never having demanded the whole of the Columbia Valleys, and by
always having made a grand point of the travels of
Lewis and Clarke ; and if one person's discovery was
to give merely a local title, then would every other
person's discovery do the same, so that Broughton
would separate Gray from Lewis and Clarke, while
Lewis and Clarke would separate Broughton from
Thompson. To avoid this mutual isolation, the
Lower Columbia, on which alone the inconvenience
would be felt, might, on the ground, be it observed,
of discovery alone, be advantageously and equitably
adopted as a common boundary, while, above the
fork, the height of land between the two grand
branches would form the natural limit between the
discoveries of Lewis and Clarke on the one side and
those of Thompson on the other.
 17
If Gray's so-called discovery had been immediately matured into actual possession, the Americans
might, possibly, have claimed the whole of tho
Columbia valleys as against all other maritime discoverers, though not as against any overland explorer, so as to have excluded Broughton's rivalry,
but to have admitted Thompson's. But so far from
instantly taking actual possession, the Americans
failed even to take that constructive possession,
which alone, as distinguished from the discovery
itself, gives to the discoverer any exclusive right.
Gray confessedly omitted the form of taking
possession, while neither the general position of
his country, nor its particular proceedings, could by
implication supply the omission in question. Physically, the Americans had boundless wildernesses
of greater value to cultivate at home, and politically
they knew no mode of governing distant dependencies ; and during the next ten years, Gray's
success, according to Greenhow himself, was unnoticed and unknown, both popularly and officially,
in the United States. Nor was the claim improved
by keeping. In 1803, after the purchase of Louisiana had brought the republic into contact with
the Columbia Valleys, the instructions of Lewis and
Clarke regarded only " the purposes of commerce,"
and, even in regarding such "purposes," looked
with impartial eye on "the Columbia, the Oregon,
the Colorado, or any other" river,—the mention of
111 ~~$ € Wk
 18
" the Colorado," which was known to be Spanish,
being equivalent to a disavowal of all territorial
" purposes" whatever; while Lewis and Clarke, so
far as Greenhow goes, confined themselves within
the range of their instructions. Subsequently,
Mr. Jefferson, as quoted by Washington Irving,
appeared to cherish the same views that had dictated his instructions aforesaid, by anticipating from
Mr. Astor's private enterprise, to which he promised
"every facility and protection which the government could properly afford" a community of " free
and independeat Americans, unconnected with us
but by the ties of blood and interest, &c.;" and in
1807, the same statesman, through the avowed
motive of not giving offence to Spain, objected to a
treaty, in which Great Britain seemed to impute to
the United States the desire of appropriating part
of the north-west coast. Do not these undeniable
facts lead to the irresistible inferences, that America
did not, within reasonable time, assume the benefits
of Gray's discovery, and that, if it had assumed
them at first, it would have afterwards forfeited them
by waiver ? To bring the question to a practical
test, America could not, at least for fifteen years
after 1792, have found any the least pretext in the
law of nature or of nations for remonstrating with
any State that might have actually appropriated to
itself the Columbia Valleys in property and dominion ; nor could it, after the lapse of those fifteen
years, set forth for the first time, an inchoate title,
 19
which, according to its very terms, must have
existed, in order to exist at all, from the beginning.
In "strictness, therefore, America is not entitled
on the score of discovery, to any portion of the disputed territory, while England, through Drake, and
Broughton, and Thompson, and its explorers of the
Southern Valleys, is entitled, according to the
usages of the civilized world, to carry the effect of
its discoveries to the main height of land, in default
of conflicting discoveries. Greenhow, it is true,
smiles at the antiquity of Drake's claim. In spite,
however, of the delay, it is still good against those
who have no claim at all; and certainly it has never
been waived, for Drake's original acquisition,
besides being recorded on every map under the
name of New Albion, was embraced by the charters
of Carolina, Virginia, &c.
:m
,    SETTLEMENT.
Settlement is merely such a possession as potentially applies — actual application being at first
impossible—a country to its natural and proper
use; and hence every attempt at settlement is entitled, as against all competitors, to such a range of
territory as may be necessary for its successful
working.
To take an instance from the convention of 1790
between Spain and England, that treaty declared
the unoccupied wilderness of the west coast to the
c 2
 £31
20
north of the Spanish settlements to be open for
colonization to both nations. Now, without violating the spirit of this agreement, England could
not have planted a colony in the very neighbourhood of Port San Francisco, or nearer to Port San
Francisco than Port San Francisco was to Monterey.
The range of territory in question may sometimes
be fixed by nature herself. Thus the foundation of
New Orleans amounted to a possession of the Mississippi Valleys, and the foundation of Quebec to a
possession of the St. Lawrence Valleys, at least as
against maritime" intruders; and the foundation of
Astoria, if, all the rights of discovery had centred
in America, might have amounted to a possession
of the Columbia Valleys, excepting against inland
rivals.
Farther, according to the most obvious dictates of
truth and reason, the settlement, in order to give the
nation a claim, must be founded, if not by the
nation, at least under the national authority. Now,
though this national authority may be presumed in
favour of any nation that holds the principle of
indelible allegiance, for it may at any time be enforced with respect to subjects that have migrated
without placing themselves under such a local law as
the civilized world recognizes, yet it cannot be presumed in favour of any nation,—the United States*
for instance,—that repudiates the principle in question ;  and perhaps  neither description  of nation
 21
can demand to be identified with a knot of foreigners, merely because such foreigners may choose
to hoist the national flag,—unless, of course, the territory,'as such, be clearly and undeniably national.
To add one word more, the abandonment of a
settlement amounts to a forfeiture, not only of the
actual possession, which may have been involved in
settlement, but also of the contingent possession,
which may have rested on discovery. It is, in short,
the clearest and strongest of all waivers.
The bearing of those palpable truths on the
following undeniable facts will hardly require to be
stated. te
Towards the close of the last century, the Spaniards formed two settlements, one in Nootka
Sound, and another on the southern side of the
Strait of Fuca, soon abandoning the former in
favour of England, and as soon deserting the latter,
without condition or qualification. But, even if
maintained, those settlements were not entitled to a
very wide range of territory, for, like the Califor-
nian colonies, they were merely the dog in the
manger, destined to bark and starve. They were a
fraudulent mockery of actual possession, neither
applying, nor promising to apply, the coveted region
to any purpose whatever. ^H
In or about 1810, Henry established an American
post at the head of the Southern branch of the Columbia, almost immediately evacuating it; in 1811,
Mr. Astor's partners, who were chiefly Scotchmen,
1
 22
planted four stations on the Columbia and its feeders, forsaking one and all of them before the close
of 1813 on account of the war. If in later years
other attempts have been made, they either have
proved failures in the end or have been from the
beginning mere accretions to previously existing
settlements of the English. To say nothing of
Henry's flying visit, Astoria and its dependencies,
even if not abandoned, would have vested in the
republic at best a very slender claim. They were
neither founded by the nation nor under the national
authority ; they were commanded chiefly by Scotchmen, and manned chiefly by Canadians, so that, if
they had been kept up under such management till
1821, they would have become the subject of remonstrance on the part of England, as enabling
British subjects to evade the Hudson's Bay Company's exclusive licence. As the settlements in
question neither stood on American territory nor
were held by American citizens, they could not expect, as a matter of right, to be acknowledged as
national establishments ; and if the exclusive licence
aforesaid had been granted, as it might have been,
ten years sooner, they would most probably have
been subjected to domiciliary visits for the purpose
of recovering those who would have been violating
their indelible allegiance, while the Americans could
not have based any complaint in the premises on any
principle whatever of public law. Neither the capture of Astoria nor its restitution involved any ad-
 23
mission of nationality on the part of England, for
Astoria was liable to be taken, because it shewed the
American flag, and was to be restored under the
treaty of peace, because it had been taken. If the
capture and the restitution had any effect beyond
their own essential range, they concurred in proving
that very abandonment, which divests the question
of nationality of all practical importance. Previously
to the capture, Astoria had been given up for a price
to the North-west Company, its "buildings " as well
as its goods having been appraised and sold ; and
subsequently to the restitution, the post was never
attempted to be re-established.
In 1806 and 1811 respectively, the North-west
Company established trading posts on the Tacoutche
Tesse and the Columbia, never receding but always
advancing down to 1821. Subsequently to the year
last-mentioned, the Hudson's Bay Company, after
filling up the outline of its predecessor, struck the
roots of its commerce even into the Great Archipelago and the Southern Valleys; and accordingly,
to quote Greenhow's own words, " in the course of
a few years, the whole region north and north-west
of the United States, from Hudson's Bay and Canada
to the Pacific, particularly the portion traversed by
the Columbia and its branches, was occupied, in a
military sense, by British forces, although there was
not a single British soldier, strictly speaking, within
its limits." But the country has been " occupied "
not merely " in a military sense."     Not only has its
■
jsl
■
i
 3TS
24
every nook been vigorously and systematically appropriated, according to its natural capabilities, either
to the fur-trade or to the fisheries, but also the few
spots which are susceptible of cultivation, have been
formed into agricultural settlements, namely, the
shores of Puget Sound, and the banks of the Walla-
met, the lowest feeder of the Columbia on the left.
On Puget Sound the Americans have done nothing;
and though on the Wallamet they have recently become the majority, they cannot thereby have affected
England's original claim of prior settlement,—even
if American citizens carried with them, in presumption of law, American nationality.
On the ground of actual possession, therefore,—
the strongest, by the bye, of all grounds,—England
sees not even the shadow of a rival.
CONTIGUITY. £;
Though, all other things being equal as between
claimants, contiguity certainly ought to decide as a
make-weight, yet, if stretched beyond the point, it
resolves itself merely into that insane perversion
of the doctrine of natural boundaries, which sacrifices the rights of the weak to the aggrandisement of
the strong.
Under this head, Spain once had the strongest
claim, for, even without reckoning California, the
ports of San Bias and Acapulco were nearer to the
north-west coast than any portion of the United
 25
States, or any territory of Great Britain ; but this
local superiority Spain virtually lost in or about
1810, namely, at the very commencement of the
troubles that in.1821 gave full and perfect independence to Mexico. Nor could Spain at any time
have founded much of an argument on the physical
fact of its proximity. The richer provinces were
sufficiently protected towards the North by wildernesses wider far than those within which the Suevi
by fire entrenched themselves, while the wildernesses themselves had been repeatedly coasted for
two centuries and a-quarter before they received their
maritime germs of San Diego, Monterey, and San
Francisco; Spain, therefore, neither needed the
North-west coast for the purposes of defence, nor
was likely to use it for the purposes of settlement.
On a superficial view of this head, America may
seem to have a stronger claim than England. In fact,
the argument of contiguity, which is indebted for its
existence to the buying of Louisiana in 1803, has
been, according to Greenhow himself, the grand
motive for trying to fan into life the still-born argument of discovery; and, from the whole tenor of
the proceedings, nothing appears to be more certain, than that the north-west coast, if separated
from the United States by land or by water, would
never have become a bone of contention between
America and England. But the proximity of the
republic is rather apparent than real, for between
 26
the habitable tracts on either side of the Rocky
Mountains, there intervenes an almost impassable
waste of about four hundred miles in breadth. Let
Greenhow speak : —" The southern part of this
region," namely, that part of the upper region which
enters into the alleged contiguity, " is a desert, of
steep rocky mountains, deep narrow valleys, called
holes by the fur-traders, and wide plains, covered
with sand or gravel;" and " the country east of the
Rocky Mountains, for more than two hundred miles,
is almost as dry and barren as that immediately on
the western side." Greenhow, moreover, furnishes
the conclusion as well as the premises. " The
interposition of this wide desert tract between the
productive regions of the Mississippi and those of
the Columbia, must retard the settlement of the latter countries, and exercise a powerful influence over
their political destinies." Nor have the results
been different from what Greenhow leads one to
expect. Even as late as 1829, the overland route
from St. Louis to the sources of the Platte, the
most southerly of the main branches of the Missouri, occupied, according to Greenhow, three
months and six days, the interval from 10th April
to 16th July ; and if there be added the periods
required for passing from the internal sources of
emigration to St. Louis, and for traversing the
whole of the breadth and the half of the length of
the disputed territory, contiguity will appear to do
something less for Massachusetts than Cape Horn
 27
is ready to do for England. The Americans have
themselves practically confessed this, for both the
founders of Astoria and the latest settlers for the
Wallamet preferred the length of two oceans to the
one contiguous belt of desolation and misery.
If the Americans themselves thus choose the
seas as their highway to the north-west coast, the
English are as decidedly superior on the score of
contiguity, as they have been shown to be on the
score of possession; for, where the means of communication are equal, the country that habitually
sends forth § myriads of emigrants, must sooner
people a distant shore, than the country that habitually receives more recruits on its maritime border
than it pours into its inland valleys. So clearly is
this the case, that, even if the contiguity of the
Americans were not apparent but real, the English
could still outrun them in the race, for New Zealand and most of the Australian colonies have at
least kept pace with the average growth of an American territory, or, in other words, of such a portion
of wilderness as is set apart for the purpose of ultimately ranking as an equal member of the union.
But the superiority of Great Britain is still more
decisive in a political sense than in a physical view.
Though for many an age England can undeniably
keep whatever share it may obtain of the disputed
territory, yet America never can maintain any closer
relation with the north-west coast than that which
subsists between England and itself, or itself and
 28
Texas,—the same relation, in fact, that was anticipated by Mr. Jefferson in the language already
quoted, " unconnected with us but by the ties of
blood and interest." It would be almost impossible
for the Oregonese to send representatives a journey
of six or seven months to Washington, unless they
should adopt the plan of despatching separate
batches for alternate years; and, even if the journey
were shorter in point of time, the mileage, particularly if charged by the route of Cape Horn, would
render the tramontane visitors a disproportionate
drag on the national exchequer. It would, moreover, be altogether impossible for the national government to exercise any control, unless by sufferance, on the farther side of a desert impassable to
large bodies of men, while a naval squadron would
itself be in greater danger from the want of shelter,
than, a surf-beaten shore would be from all its
threats of invasion or blockade.
But, as between the last-mentioned two claimants,,
contiguity has been not merely the foundation of
the general claim of America, but also the groundwork of its special demand, that the parallel of 49°,
which is the common boundary to the eastward of
the Rocky Mountains, be held to be so all the way
to the Pacific Ocean. Now, if there were no other
argument on either side, nothing could be more
reasonable than that the eastern portion of the
dividing line should be taken as a model for the
western.    Nor has England any reason to shrink
 29
from such a criterion. The eastern portion follows,
as far as possible, natural boundaries to whatever
latitude such natural boundaries may lead ; for, beginning at the mouth of the St. Croix River on the
parallel of 45°, it ascends, according to the literal
interpretation of the treaty of 1783, to the parallel
of 48° on nearly the same meridian, then descends
at the head of Lake Erie to the parallel of 42°,
and afterwards trends away to the northward, till, at
the farther end of the Lake of the Woods, it almost
cuts the parallel of 50°, thence running due south to
the parallel of 49°, and thence again due west to
the Rocky Mountains. ||i
In all this immense space the parallel of 49° is
the only arbitrary section of any length, though
there is but little difficulty in proving that the necessity of an artificial boundary was as inevitable here
as in any of the less remarkable instances. The
framers of the treaty of 1783 are generally supposed to have believed the Lake of the Woods to
be a tributary, not of Lake Winepeg, but of Lake
Superior,—a mistake less strange, all things considered, than that made by Mr. Webster during the
negociation of the Ashburton Treaty, to the effect,
that the Red River of the north flowed out of the
Lake of the Woods. But whatever the authors
of the compact meant or expected, the compact
itself certainly carried the international border across
the only available natural boundary, namely, the
height of land between Hudson's Bay and the Gulf
 30
of Mexico. When, therefore, the purchase of
Louisiana brought England and America into contact as far as the mountains, the question was settled
by compromise. According to tbe treaty of Utrecht,
commissioners were appointed to draw the boundary
between Hudson's Bay and the French possessions,
which then comprised both Canada and Louisiana,
but the appointment was followed by no result. On
maps published subsequently to the date of that
treaty, two lines of demarcation are laid down, the
one following the parallel of 49°, and the other the
height of land between the Gulf of Mexico and
Hudson's Bay; from which it may be supposed that
each of these lines was discussed by the commissioners. The former was, most probably,
deemed at the time the more advantageous to
England; for, even as late as 1783, the sources
of the Mississippi were assumed to lie to the
northward of the north-westernmost point of the
Lake of the Woods. As to the height of land, it
could not, as a whole, be adopted, inasmuch as the
Lake of the Woods lay above it; while in favour
of the parallel of latitude, which was now known to
be more favourable to the southern than to the
northern claimant, the Americans could argue, that,
under the treaty of 1783, the whole continuation of
the line was to run due west from the extremity
aforesaid of the Lake of the Woods to the river
Mississippi, then, as already mentioned, supposed to
rise farther to the northward.
 31
To conclude : since the principle of the dividing
line on the one side of the mountains is the preference of natural boundaries, the extension of the
same principle to the other side of the range would
give nearly the same result as the most liberal view
of the argument of discovery. The natural boundary would be the Lower Columbia up to the fork*r
and, above the fork, the height of land between the
two grand branches ; and all that would be wanting
to identify the two results would be the exckange of
Bulfinch's Harbour for the Southern Valley.
To offer one word more. The Americans have
themselves indirectly repudiated even their own
extension of the eastern line, by having originally
claimed the north-west coast up to the parallel of
51°, and having thereby sanctioned a deviation
nearly wide enough, when taken in a different direction, to bring England down to the mouth of the
Columbia,—besides being so boldly groundless as
to evince a disposition to set everything Hke justice
at defiance.
But even as far as the parallel of 49°, the aetual
circumstances of the case present a curious commentary on the doctrine of contiguity. Lewis and
Clarke crossed the mountains nearly on the parallel
of the mouth of the Columbia. Hunt chose rather
to attempt a new route farther south than to tread
in the tried footsteps of his predecessors; and the
later travellers have been at last driven as far down
as the parallel of 42°, actually passing at one point,
 32
according to Greenhow's map, through Mexican
territory, and having afterwards to climb the lateral
range of the Snowy Mountains.
Not to deprive the Americans of any available
ground of claim, two of their arguments must be
mentioned, which, if they do not altogether spurn
the trammels of classification, fall rather under the
head of contiguity.
The president of the year 1823 propounded
the maxim, " that the American continents, by the
free and independent condition which they have
assumed and maintained, are henceforth not to be
considered as subjects for colonization by any
European power ;" and in a still more exclusive
strain of patriotism, Greenhow makes a point of
the assertion, that there is " little prospect of the
diffusion of the pure Anglo-Saxon race through
countries possessed by the Hudson's Bay Company."
When transplanted to the Pacific, the two principles, that have yielded so brilliant fruits on the
Atlantic to the south, and the north, and the west,
respectively exclude from the disputed territory all
the old world in a heap, and all the new, save the
United States. England, though Anglo-Saxon, has
the misfortune to be European ; and Mexico, though
American, is stupid enough to " call a hat a sombrero."
 33
CONVENTION.
Four compacts require particular consideration :
the treaty of 1790 between Spain and England, the
treaties of 1814 and 1818 between England and
America, and the treaty of 1819 between America
and Spain.
Of the treaty of 1790 the following are the applicable articles:—
" III. In order to strengthen the bonds of friendship, and to
preserve in future a perfect harmony and good understanding, between the two contracting parties, it is agreed that their respective
subjects shall not be disturbed or molested, either in navigating,
or carrying on their fisheries, in the Pacific Ocean or in the South
Seas, or on landing on the coasts of those seas in places not already
occupied, for the purpose of carrying on their commerce with the
natives of the country, or of making settlements there; the whole
subject, nevertheless, to the restrictions specified in the three following articles."
IY. As well in the places which are to be restored to the
British subjects, by virtue of the first article, as in all other parts
of the north-western coasts of North America, or of the islands
adjacent, situate to the north of the parts of the said coast already
occupied by Spain, wherever the subjects of either of the two
powers shall have made settlements since the month of April,
1789, or shall hereafter make any, the subjects of the other shall
have free access, and shall carry on their trade without any disturbance or molestation.''
The third article was clearly intended to set aside
the conflicting questions as to discovery and its
attendant rights, by recognising the rule, that settle-
D
 34
ment on the principle of " first come, first served,"
should be decisive and conclusive ; and the fifth
article merely provided, that any new settlements of
the one power should be open to the traders of the
other. In other words, the two articles, taken
together, held settlement to confer a perfect right
of sovereignty, saving only the commercial reservation.
But this treaty, it has been argued, was ipso facto
annulled in 1796, by the war which then broke out
between the contracting parties, and was never subsequently revived.
That the fifth article was annulled, is undeniable.
With respect, however, to the third article, the case
was widely different. Though its practical provisions were, of course, suspended, yet the fundamental right, which they were meant to enforce, remained undisturbed. Of such right the article in
question,—Greenhow himself describing it as "a
declaration of rights,"—was not introductory, but
declaratory, being merely the mutual recognition of
an important part of the universal law of nature and
nations, as laid down by Vattel, as proclaimed aloud
by every maritime people against the exclusive pretensions of the Pope's peninsular favourites, and as
admitted with respect to the adjacent portion of the
north-west coast, which had been appropriated,
though not in any sense discovered, by Russia, by
the three claimants themselves expressly, by America
and England, and tacitly by Spain     But the whole
 35
treaty was in its nature declaratory. The first
article involves an admission on the part of Spain,
that England had had a right to colonise Nootka
Sound ; the third, with a retrospective implication,
speaks as to both nations of "their fisheries" and
" their commerce with the natives of the country ;"
and the sixth, which treats of the unoccupied
regions at the Southern extremity of the continent,
deprives both nations equally of the right of forming settlements, but permits them equally to " retain" all other rights whatever.
But, even if annulled by the war, the articles in
question were subsequently revived. The third
article returned with the peace, which would necessarily, exceptis excipiendis, restore all questions of
territory, whether actual or potential, into the status
ante bellum. The fifth article again came into
force under the treaty of 5th July, 1814, by which
" all the treaties of commerce," that subsisted
" between the two nations" in 1790, were " ratified
and confirmed." Greenhow, indeed, labours to
prove, that the arrangement of 1814 referred merely
to the trade of Great Britain, as such, and Spain,
as such, without regard to the colonies of either
kingdom; but his arguments, being avowedly based
on the exclusive character of the commerce of colonies in general, and of that of Spanish America in
particular, are clearly inapplicable to a provision,
which expressly establishes a -free  trade between
d 2
 36
either power, and certain colonial settlements of the
other. But even if Greenhow's reasoning were as
solid as he deemed it, he would be gaining a victory
not for Spain, but for England. If the article is in
force, then Spain has a right to trade at every British port of the disputed territory, with all the
advantages of one-sided reciprocity ; if it be not in
force, then Spain has no such right of trading,
while, as has already been shown, its right of settling
under the third article has been reduced within
very narrow limits by the existing settlements of
England.
The treaty of 1814, between Great Britain and
the United States, provided " that all countries,
places, and possessions whatsoever, taken by either
party from the other during or after the war, should
be restored without delay." Now, the remarks
that have already been made under the head of
Settlement with respect to the restitution of Astoria,
show that Astoria had rather been abandoned than
captured. But be this as it may, the treaty of
peace required to be effected on the principle of
status ante bellum ; so that the alleged reservation
as to the right of sovereignty, whether made or
omitted by England, and whether accepted or rejected by America, was, under any and every supposition, merely a work of supererogation. But,
even admitting that the restitution necessarily implied a recognition of sovereignty, Astoria could
carry with it only the Southern side of the lower
 37
river,  and   the   Southern   branch   of   the   upper
waters.
At the very most, however, the restitution acknowledged in America merely the same privilege of colonizing unoccupied territory, which the
treaty of 1790 had declared to exist as between
Spain and England,—a privilege which was in itself
utterly repugnant to a recognition of the dominion
of a wilderness, and was in its consequences incompatible with the duties of England towards Spain.
The privilege in question might, so long as it was
exercised, carry with it a right of sovereignty; but,
as it could not leave behind it such right, when it
was itself allowed to lie dormant, the subsequent
abandonment of Astoria took from America all
that the treaty of 1814 could ever be supposed to
have given it.
Of the treaty of 1818, the only applicable article
is the third, rendered perpetual by the treaty of
1827, subject, however, to be annulled by either
party after a year's notice :—
" III. It is agreed that any country that may be claimed by
either party on the north west-coast of America, westward of the
Stony Mountains, shall, together with its harbours, bays, and
creeks, and the navigation of all rivers within the same, be free
and open for the term of ten years from the date of the signature
of the present convention, to the vessels, citizens, and subjects of
the two powers; it being well understood that this agreement is
not to be construed to the prejudice of any claim which either of
the two high contracting parties may have to any part of the
said country, nor shall it be taken to affect the claims of any
other power or state to any part of the said Country;  the only
 38
object of the high contracting parties, in that respect, being to
prevent disputes and differences among themselves."
Greenhow's summary appears to be pro tanto
correct, " that any territory in that section of America, claimed by either, should be equally free and
open for navigation, trade and settlement, to the
citizens and subjects of both." Though thus far
the article in question is practically the same as the
third article of the treaty of 1790, yet the second
member of the sentence appears to involve this remarkable difference, that settlements of subsequent
date are not to carry with them the rights of sovereignty, inasmuch as they are not to affect the
claims of either party. This^ however, does not
seem to have been the view of the American Government ; for, in 1827, the " President of the
United States," according to Greenhow, " refused
to agree to any modification of the terms of the
joint occupancy,"—the proposed modification on
the part of Great Britain having been, " that neither power should assume or exercise any right or
sovereignty or dominion over any part of the
country during that period, and that no settlement
then existing, or which might in future be formed,
should ever be adduced by either party in support
or furtherance of such claims of sovereignty or dominion." If the republican interpretation be correct, so much the worse for the Republic, precisely
in the proportion in which England has formed more
settlements than America.
 39
Of the treaty of 1819 the third article draws the
boundary between the United States and Mexico
and then closes with the following rider :—
" The two high contracting parties agree to cede and renounce
all their rights, claims, and pretensions to the territories described
by the said line; that is to say, the United States hereby cede to
His Catholic Majesty, and renounce for ever all their rights, claims
and pretensions to the territories lying west and south of the above
described line; and, in like manner, His Catholic Majesty cedes
to the said United States all his rights, claims and pretensions to
any territories east and north of the said line; and for himself, his
heirs and successors, renounces all claim to the said territories for
ever."
Whether the treaty of 1790 was in force or not
at the date of the last-mentioned compact, the rights
of Spain were comparatively insignificant as against
England.
Under the latter supposition, Spain had lost the
argument of contiguity through the Mexican revolution, while it had forfeited the arguments of discovery
and settlement partly through its own delay and
waiver, and partly through the forestalling activity
of its great rival.
Under the former supposition of the continued
existence of the treaty of 1790, which has already
been shewn to be the true one, Spain held only the
right of colonizing unoccupied territory under the
third article, and under the fifth article the right of
trading at the English settlements,—the right of
trading not being at all susceptible of transfer, and
the right of colonizing amounting, if transferred, to
 40
nothing beyond what England had indirectly acknowledged in the restitution of Astoria.
It may, moreover, be doubted, whether the one
right was more susceptible of transfer than the other.
On general grounds one party to a compact,
whether public or private, is incompetent to substitute another party in its place. But, even if the
ordinary rule were otherwise, it could be enforced
only in favour of a substitute, that might be both able
and willing to discharge the correlative obligations
as well as to enjoy the correlative rights ; and this
limitation would be inconsistent with the substitution
of any power whatever in a treaty, whose every line
viewed Spain in its peculiar relation to the Pacific
Ocean and the coasts of the same.
Nor in all probability did the parties at the time
contemplate any substitution of America for Spain
as against any other nation. The provision in question, be it observed, had not an independent existence,
but was merely appended to the article that professed
to define the common boundary; and as the language
implied that the cession and the renunciation were to
be co-extensive, the former could not have force as
against England any more than the latter had force
in favour of that kingdom. But though the language
had been different, reason would have come to the
same conclusion, for Spain could not substitute
America by the cession without at the same time
expressly giving England the  benefit of the re-
 41
nunciation. Now, notwithstanding the treaty of
1819, England and Spain continued to occupy'the
same position with regard to each other; Spain was
still entitled to trade with the English settlements,
and to colonise, 'so far as England was concerned,
any unoccupied territory towards the north; and
England was still entitled, though America had
ceased to be so, to colonise any unoccupied territory
between the parallel of 42° and the due range of the
nearest Spanish settlement.
But there is a convention more decisive in its
character than any treaty between foreign competitors, the consent of the aborigines themselves.
Spain has never had, and most probably has
never cared for having, any interest in the affections
of the natives, while, as between England and
America, Greenhow affords testimony, which is as
conclusive as it is disinterested. Speaking of the
natives, he says, that " the agents of the Hudson's
Bay Company take care to keep" them "at enmity
with" the traders of the United States; and in
another place he adds, that " the Indians are everywhere so tutored and managed by its agents, that
they have become the willing slaves of the association, and are ready at any time to strike at its adversaries." Though, when it comes from such a
quarter, the evidence as to the effect is unanswerable, yet as to the alleged cause, Greenhow must
permit the world to take his statement at what it is
worth.    It is quite possible that the English may
 42
have won the hearts of the aborigines without any
attempt to disparage the Americans; and it is quite
possible that the Americans may owe their hatred
partly to the rumoured horrors of eastern spoliation
and cruelty, and partly to tramontane displays of an
unfeeling and insatiable disposition.
Moreover, the consent of the natives ought to
have the greater weight, as they are confessedly less
barbarous than their brethren to the eastward, being
more gregarious in their habits, more sedentary in
their pursuits, more skilful in defending themselves
from the weather, and more economical in providing
against want. In fact, this soundest and best of all
conventions, if England had nothing else to plead,
would be more than a counterpoise for all and every
the arguments of Spain and America.
CONCLUSION,
To sum up the claims of the Americans and the
English under the different heads. Convention
gives the whole of the disputed territory to England
by a title paramount to all the pretensions of civilized jurisprudence, while it gives to America
literally nothing, whether in the restitution of Astoria or in the treaty of 1819. Contiguity, even if
admissible as a make-weight, runs the line up the
Lower Columbia, and between the waters of the
two grand branches.    Settlement is conclusive in
 43
favour of England through the whole length and
breadth of the Country, while with regard to. America it results merely in the strongest of all possible
waivers, uniform and universal abandonment. Discovery is decisive in favour of England as to the
Southern Valleys, the Northern Valleys (excepting
Bulfinch's Harbour), and as to the right bank of the
Lower Columbia with the basin of the northern
branch, while, even if not altogether forfeited by the
delay not merely of enforcing the claim, but even of
making it, it requires to be liberally construed in
order to give in any sense to America what it does
not exclusively give to England.
England, therefore, will forego much of her equal
rights, if she consent to draw the common boundary
of the Lower Columbia to the fork, and thence
along the height of land that separates the two
great branches of that river.
But though England (for there are limits even to
the noblest magnanimity) may sacrifice her equal
rights, yet she cannot consistently sacrifice her exclusive claims, any more than America is justified
by a generally excusable sensitiveness in urging so
unreasonable a demand.
Finally, in England the value of the disputed
territory is very much underrated. The southern
half, it is true, will never be worth much to the
Americans, whether as a nation or as individuals;
for its only two harbours are hardly good for anything ; and it is doubtless a consciousness of this,
 44
that prompts Gray's countrymen, even while boasting of his discoveries, to covet a footing in defiance
of the tenth commandment, on the Strait of Fuca.
But the northern half, with its countless nests of
natural harbours, is destined to be the ruler of the
Pacific ; and of all the colonies there is not one that
is so likely to become a congenial nurseling as the
screened and serrated coasts of the North-west
Archipelago.
August 7,1843.
      

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