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Correspondence relative to the negotiation of the question of disputed right to the Oregon Territory,… Great Britain. Foreign Office 1846

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Array     CORRESPONDENCE
RELATIVE   TO  THE
NEGOTIATION OF THE QUESTION OF DISPUTED RIGHT
TO  THE
OREGON  TERRITORY,
ON  THE
NORTH-WEST COAST OF AMERICA \
SUBSEQUENT   TO
The  Treaty  of Washington of August 9,   1842.
Presented to both Houses of Parliament by Command of Her Majesty.
1846.
(60)
LONDON:
TRINTED   BY  T.   R.  HARRISON.  LIST   OF   PAPERS
No.
1.
2.
3.
4.
Fox
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22
23
24
25
26
27
28
29
Mr. Fox to Mr. Webster
The Earl of Aberdeen to Mr.
Mr. Webster to Mr. Fox
Mr. Fox to tbe Earl of Aberdeen
Inclosure.
Extract from Message of the President of tbe United States
The Earl of Aberdeen to Mr. Fox     ..
Mr. Fox to the Earl of Aberdeen
Inclosure.
Special Message of tbe President of the United States
The Earl of Aberdeen to Mr. Fox
Mr. Fox to the Earl of Aberdeen
Mr. Fox to the Earl of Aberdeen
Inclosure.
Extract  from  Annual  Message   of  the  President
United States
The Earl of Aberdeen to Mr. Pakenham
Mr. Pakenham to the Earl of Aberdeen
Two Inclosures.
1. Mr. Pakenham to Mr. Upshur
2. Mr. Upshur to Mr. Pakenham- ..
Mr. Pakenham to the Earl of Aberdeen .. ..
Mr. Pakenham to the Earl of Aberdeen
Mr. Pakenham to the Earl of Aberdeen
Mr. Pakenham to the Earl of Aberdeen
Inclosure.
Mr. Pakenham to Mr. Calhoun
Mr. Pakenham to the Earl of Aberdeen
Inclosure.
Mr. Calhoun to Mr. Pakenham ..
Mr. Pakenham to tbe Earl of Aberdeen
Two Inclosures.
1. (A) Statement of the American Plenipotentiary, containing
the claims of the United States to the Oregon Territory..
2. (D) Statement of the British Plenipotentiary
Mr. Pakenham to the Earl of Aberdeen .. ..
Two Inclosures.
1. (B) Counter-Statement of the American Plenipotentiary
2. Protocols  of the Conferences  between  the  British  and
American Plenipotentiaries
The Earl of Aberdeen to Mr. Pakenham
Mr. Pakenham to the Earl of Aberdeen
Mr. Pakenham to the Earl of Aberdeen
Inclosure.
Extract from the President's Message of December 3,1844 ..
Mr. Pakenham to the Earl of Aberdeen
Two Inclosures.
1. Mr. Pakenham to Mr. Calhoun
2. Mr. Calhoun to Mr. Pakenham
, The Earl of Aberdeen to Mr. Pakenham.
| Mr. Pakenham to the Earl of Aberdeen
Inclosure.
President's Message of February 19, 1845
. Mr. Pakenham to the Earl of Aberdeen
, The Earl of Aberdeen to Mr. Pakenham
. Mr. Pakenham to the Earl of Aberdeen
, Mr. Pakenham to the Earl of Aberdeen
Two Inclosures.
1. Mr. Buchanan to Mr. Pakenham
2. Mr. Pakenham to Mr. Buchanan
, Mr. Pakenham to the Earl of Aberdeen
Inclosure.
Mr. Buchanan to Mr. Pakenham
September 12,
December 13,
December   5,
December 28,
February  24,
February  26,
April
April
May
July
July
August     29,
August     22,
September 12:
September 3,
September 12,
September 28,
September 20
Aug. and Sept.
November 1,
November 28,
December 12,
January    29, 1845    30
January 15,
January 21,
March 3,
February 26,
March
April
May
July
29,
18,
13,
29,
July 12,
July 29,
September 13,
August  OREGON TERRITORY.
Correspondence relative to the Negotiation of the Question
of Disputed Right to the Oregon Territory, on the
North-West Coast of America; subsequent to the
Treaty of Washington of August 9, 1842.
No. 1.
Mr. Fox to Mr. Webster.
Sir, Washington, November 15, 1842.
WITH reference to our recent conversation upon the question of the
Oregon or North-Western Boundary, when I conveyed to you the desire
of Her Majesty's Government that instructions should at an early period
be addressed to the United States' Minister in London, empowering him
to treat with such person as may be appointed by Her Majesty on the
part of Great Britain, for a final settlement of that' question, I have now
the honour to inclose to you the extract of a despatch addressed to me
upon that subject by the Earl of Aberdeen, in which the wishes of Her
Majesty's Government are fully and satisfactorily set forth. *
I feel persuaded that the great importance of the matter at issue, and
the friendly and conciliatory manner of Lord Aberdeen's proposal, will
induce the President of the United States to bestow thereupon his early
and serious attention.
I avail myself, &c,
(Signed)
H. S. F03
No. 2.
The Earl of Aberdeen to Mr. Fox.
(Extract.) Foreign Office, October 18, 1842.
THE ratifications of the Treaty concluded on the 9th of August
between Great Britain and the United States, were exchanged by me on
■the 13th instant, with the Minister of the United States accredited to the
Court of Her Majesty.
The more important question of the disputed Boundary between Her
Majesty's North American Provinces and the United States being thus
settled, and the feelings which have been mutually produced in the people
of both countries by this settlement being evidently favourable, and indicative of a general desire to continue on the best footing with each other,
it has appeared to Her Majesty's Government that both parties would act
wisely in availing themselves of so auspicious a moment to endeavour to
bring to a settlement the only remaining subject of territorial difference,
which, although not so hazardous as that of the North-Eastern Boundary,
is, nevertheless, even at this moment, not without risk to the good understanding between the two countries, and may, in course of time, be
attended with the same description of danger to their mutual peace as
B the question which has recently been adjusted. I speak of the line of
Boundary west of the Rocky Mountains.
You are aware that Lord Ashburton was furnished with specific and
detailed instructions with respect to the treatment of this point of difference between the two Governments, in the general negotiations with
which he was entrusted, and which he has brought to a satisfactory
issue. For reasons which it is not necessary here to state at length, that
point, after having been made the subject of conference with the American
Secretary of State, was not further pressed.
The main ground alleged by his Lordship for abstaining from proposing to carry on the discussion with respect to the question of the
North-Western Boundary, was the apprehension, lest, by so doing, the
settlement of the far more important matter of the North-Eastern
Boundary should be impeded, or exposed to the hazard of failure.
This ground of apprehension no longer exists; and Her Majesty's
Government, therefore, being anxious to endeavour to remove, so far as
depends on them, all cause, however remote, of even contingent risk to
the good understanding now so happily restored between two countries
which ought never to be at variance with each other, have determined to
propose to the Government of the United States to meet them in an
endeavour to adjust by treaty the unsettled question of Boundary west of
the Rocky Mountains.
On the receipt of this despatch, therefore, I have to desire that you
will propose to Mr. Webster to move the President to furnish the United
States' Minister at this Court with such instructions as will enable him to
enter upon the negotiation of this matter with such person as may be
appointed by Her Majesty for that object. And you will assure him, at
the same time, that we are prepared to proceed to the consideration of it
in a perfect spirit of fairness, and to adjust it on a basis of equitable
compromise.
No. 3.
Mr. Webster to Mr. Fox.
Department of State,
Sir, Washington, November 25, 1842.
I HAVE the honour to acknowledge the receipt of your note of the
15th instant, upon the question of the Oregon or North-Western Boundary,
with an extract of a despatch recently addressed to you on the subject by
the Earl of Aberdeen, explanatory of the wishes of Her Majesty's Government, both of which J laid before the President a few days afterwards.
He directed me to say that he concurred entirely in the expediency of
making the question respecting the Oregon Territory a subject of immediate attention and negotiation between the two Governments. He had
already formed the purpose of expressing this opinion in his message to
Congress; and at no distant day a communication will be made to the
Minister of the United States in London.
I pray you to accept, &c,
(Signed) DANIEL WEBSTER.
No. 4.
Mr. Fox to the Earl of Aberdeen.— (Received December 30.)
(Extract.) Washington, December 12, 1842.
THE session of Congress was opened on Monday last, the 5th instant.
I have the honour to inclose copies of the President's annual message,
which was transmitted to the two Houses on the 7th instant.
a i ^m. iiicwfc wmmwffw
hdX1*»PA9X9**<*KVX*-Lmmi'^l% Your Lordship will be surprised (after the official correspondence
between Mr. Webster and myself, which was forwarded by the last
packet) at the inexact manner in which the message describes the state
of the negotiation for the adjustment of the Oregon Boundary. The
language of the President leaves it to be inferred that an early settlement
of this question is urged by the Government of the United States, rather
than bv that of Great Britain.
Inclosure in No. 4.
Extract from the Message of the President of the United States of
December 7, 1842.
IT would have furnished additional cause for congratulation, if the
Treaty could have embraced all subjects calculated in future to lead to a
misunderstanding between the two Governments. The territory of the
United States commonly called the Oregon Territory, lying on the Pacific
Ocean, north of the 42nd degree of latitude, to a portion of which Grea£
Britain lays claim, begins to attract the attention of our fellow-citizens;
and the tide of population which has reclaimed what was so lately an
unbroken wilderness, in more contiguous regions, is preparing to flow
over those vast districts which stretch from the Rocky Mountains to the
Pacific Ocean. In advance of the acquirement of individual rights to
these lands, sound policy dictates that every effort should be resorted to
by the two Governments to settle their respective claims. It became
manifest, at an early hour of the late negotiations, that any attempt for
the time being satisfactorily to determine those rights, would lead to a
protracted discussion which might embrace in its failure other more
pressing matters; and the Executive did not regard it as proper to waive
all the advantages of an honourable adjustment of other difficulties of
great magnitude and importance, because this, not so immediately pressing, stood in the way. Although the difficulty referred to may not, for
several years to come, involve the peace of the two countries, yet I shall
not delay to urge on Great Britain the importance of its early settlement.
Nor will other matters of commercial importance to the two countries be
overlooked; and I have good reason -to believe that it will comport with
the policy of England, as it does with that of the United States, to seize
upon this moment, when most of the causes of irritation have passed
away, to cement the peace and amity of the two countries, by wisely
removing all grounds of probable and future collision.
No. 5.
The Earl of Aberdeen to Mr. Fox.
(Extract.) Foreign Office, January 18, 1843.
HER Majesty's Government have observed with surprise and regret
a paragraph in the President's late message to Congress, which, if not
directly at variance with fact, is at least calculated to mislead. That
paragraph relates to the difference existing between Great Britain and
the United States on the subject of the territory situated between the
Rocky Mountains and the Pacific Ocean.
As the correspondence which has recently passed between the two
Governments relative to the Oregon Territory will, probably, in no long
time be laid before Congress or Parliament, I might leave the facts,
as exhibited in that correspondence, to speak for themselves. But as
the President has declared an intention to Congress, of urging,
without delay, on Great Britain the importance of an early settlement
of this question, I am constrained to observe, that it would have
been more candid had he also stated that he had already received from
the British Government a pressing overture to negotiate an adjustment of
B 2 differences with respect to the Oregon Territory, and that he had responded to that overture in the same conciliatory spirit in which it had
been made.
The language held by the President in his message is the more
remarkable, since, almost at the very time that he was composing it, Mr.
Webster had notified to you, by the President's order, his assent to the
British proposition. Mr. Webster's letter bears date the 25th of November, and the President's message was delivered to Congress on the 7th of
December.
No. 6.
Mr. Fox to the Earl of Aberdeen.—(Received January 30,1843.)
My Lord, Washington, December 29, 1842.
THE inclosed special message, having reference to the present state
of the negotiation between Great Britain and the United States upon the
subject of the Oregon Boundary, was transmitted by the President to the
Senate on the 23rd instant, in reply to a resolution of the Senate of the
previous day, calling upon the Executive for information upon the above
subject.
Your Lordship will perceive that in this message the President
declines entering into the particulars of the negotiation; but that he
again gives, in general terms, the same inexact description of the state of
the business, upon which I had occasion to remark in my despatch of the
12th instant, when treating of that part of the President's annual message
which related to the Oregon Boundary.
I have, &c,
(Signed) H. S. FOX.
Inclosure in No. 6.
Special Message from the President to Congress in relation to the
Oregon Boundary.
To the Senate of the United States:
I HAVE received the resolution of the 22nd instant, requesting me "to
inform the Senate of the nature and extent of the informal communications
which took place between the American Secretary of State and the British
Special Minister, during the late negotiation in Washington city, upon the
subject of the claims of the United States and Great Britain to the territory
west of the Rocky Mountains ; and also to inform the Senate what were
the reasons which prevented any agreement upon the subject at present,
and which made it inexpedient to include this subject among the subjects
of formal negotiation."
In my message to Congress at the commencement of the present
session, in adverting to the territory of the United States on the Pacific
Ocean, north of the 42nd degree of north latitude, a part of which is
claimed by Great Britain, I remarked that, | in advance of the acquirement of individual right to these lands, sound policy dictated that every-
effort should be resorted to by the two Govenments to settle their respective claims ;" and also stated that 1 should not delay to urge on Great
Britain the importance of an early settlement. Measures have been already
taken in pursuance of the purpose thus expressed, and, under the circumstances, 1 do not deem it consistent with the public interest to make any
communication on the subject.
(Signed) JOHN TYLER.
Washington, December 23, 1842.
Bt^g?«i,» ra ^m-urn. i No. 7. •
The Earl of Aberdeen to Mr. Fox.
Sir, Foreign Office, August 18, 1843.
BY my despatch of the 18th of October last, you were authorized to
propose to the Government of the United States that full powers should
be sent to the United States' Minister in this, country, to enable him to
enter upon a negotiation with Her Majesty's Government for the settlement of the question of Boundary of the Oregon Territory. Mr. Webster
replied on the 25th of November to your note of the 15th of that month,
in which you submitted that proposition to him, that at no distant day a
communication would be made to the Minister of the United States in
London upon this subject.
In February last, Mr. Webster informed you that the President had
it in contemplation to send a Special Mission to England, for the. purpose
of opening the negotiation proposed by the British Govenment; and since
that time I had been more than once given to understand by Mr. Everett,
that it was the intention of the President to prosecute this matter in
London ; but as yet nothing further has been done.
I have therefore to desire that you will inform me whether any steps
have been taken by the American Government in furtherance of this
important object; Her Majesty's Government being most desirous that no
unnecessary delay should take place in endeavouring to bring this question
of Boundary to a satisfactory conclusion.
Should the President now entertain any serious objection, or find any
difficulty with respect to the prosecution of the negotiations in London,
you are hereby authorized to assure the United States' Secretary of
State, that you will be empowered to enter upon that duty at
Washington.
I am, &c,
(Signed) ABERDEEN.
No. 8.
Mr. Fox to the Earl of Aberdeen.—(Received October 1.)
(Extract.) Washington, September 12, 1843.
I HAD the honour to receive by the last packet your Lordship's
despatch of the 18th ultimo, concerning the present state of the Oregon
Boundary negotiation. Having suffered for the last few days from a
severe attack of fever, I was unable to confer personally with the United
States' Secretary of State. I therefore commissioned Mr. Lettsom, first
Attache to this Legation, in whom, I am happy to say, I place full confidence, to make the required communication for me.
Mr. Lettsom called upon Mr. Upshur, and read to him, by my desire
your Lordship's despatch. He stated to Mr. Upshur that the object of
the communication was to make the United States' Government aware
how much your Lordship desired that an early progress might be made in
the Oregon negotiation, either by transmitting powers and instructions
to Mr. Everett in London, or, if the President should prefer it, by my
being empowered to enter upon the negotiation at Washington.
Mr. Upshur, after having heard your Lordship's despatch read,
replied, that the United States' Government were not inattentive to the
subject of the Oregon negotiation, and were, equally with Her Majesty's
Government, desirous to promote an early settlement of the question. He
said that, immediately upon the President's return to the seat of Government, he should consult with him upon the matter, and would then make
to me a further communication. The President is at present in Virginia,
but he is expected to be back at Washington for a few days in the course
of a week. 6
Mr. Upshur added to Mr. Lettsom, of his own accord, that he
thought it likely the President would prefer to conduct the negotiation at
Washington.
No. 9.
Mr. Fox to the Earl of Aberdeen.—(Received December 31.)
(Extract.) Washington, December 13, 1843.
I  HAVE  the honour to inclose copies of the President's annual
message transmitted to Congress on the 5th instant.
In that part of the President's message which refers to the Oregon
Boundary negotiation, your Lordship will regret to find that the same
inexact mode of representing the present state of the negotiation is persisted in, of which we had reason to complain in two messages transmitted
by the President to Congress at the beginning of the last session. The inference drawn from the President's expressions by all who are unacquainted
with the real state of the case, and with the communications that have
passed between the two Governments, must still be, that the President has
been occupied in urging upon Her Majesty's Government an early settlement of the Oregon Question; and that Her Majesty's Government, on
their part, have either been inattentive to the urgency of the question, or
reluctant to proceed to an adjustment of it. This is the unavoidable
inference to be drawn from the President's words.
On the other hand, it is satisfactory to observe that the question at
issue between Great Britain and the United States, with regard to the
Oregon Territory, and the nature of the dispute, are fairly and not intem-
perately stated in the President's message of this year; and, above all,
that no rash or irrevocable assertion is hazarded, of the intention of the
United States to persist in their entire claim, nor any declaration which
need preclude the President from acceding to an equitable compromise,
if the course of the negotiation should lead to such a mode of adjustment.
Inclosure in No. 9.
Extract from the annual Message of the President of the United States,
transmitted to Congress December 5,1843.
A QUESTION of much importance still remains to be adjusted
between them (Great Britain and the United States). The territorial
limits of the two countries in relation to what is commonly known as
the Oregon Territory, still remain in dispute. The United States would
be at all times indisposed to aggrandize themselves at the expense of
any other nation; but while they would be restrained by principles
of honour which should govern the conduct of nations as well as that
of individuals, from setting up a demand for territory which does not
belong to them, they would as unwillingly consent to a surrender of
their rights. After the most rigid and, as far as practicable, unbiassed
examination of the subject, the United States have always contended
that their rights appertain to the entire region of country lying on
the Pacific, and embraced within 42° and 54° 40' of north latitude. This
claim being controverted by Great Britain, those who have preceded the
present Executive, actuated, no doubt, by an earnest desire to adjust the
matter upon terms mutually satisfactory to both countries, have caused to
be submitted to the British Government, propositions for settlement and
final adjustment, which, however, have not proved heretofore acceptable to
it. Our Minister at London has, under instructions, again brought the
subject to the consideration of that Government; and while nothing will
be done to compromit the rights or honour of the United Stales, every
proper expedient will be resorted to in order to bring the negotiation, now in the progress of resumption, to a speedy and happy termination. In the
mean time, it is proper to remark, that many of our citizens are either
already established in the territory, or are on their way thither for the
purpose of forming permanent settlements, while others are preparing to
follow; and in view of these facts, I must repeat the recommendation
contained in previous messages, for the establishment of military posts, at
such places, on the line of travel, as will furnish security and protection
to our hardy adventurers against hostile tribes of Indians inhabiting those
extensive regions. Our laws should also follow them, so modified as the
Circumstances of the case may seem to require. Under the influence of
our free system of government, new republics are destined to spring up,
at no distant day, on the shores of the Pacific, similar in policy and in
feeling to those existing on this side of the Rocky Mountains, and giving
a wider and more extensive spread to the principles of civil and religious
liberty.
No. 10.
The Earl of Aberdeen to Mr. Pakenham.
(Extract.) Foreign Office, December 28, 1843.
ONE of the first objects which will engage your attention on your
arrival at Washington, will be the negotiation for the settlement of the
Boundaries of the Oregon or Columbia Territory.
By a perusal of the communications which have recently passed on
this subject between the British and American. Governments, you will see
that in October, 1842, Her Majesty's Goverement, being desirous of
putting an end to any difference which, notwithstanding the successful
mission of Lord Ashburton, might still exist, a proposition was made to
open a negotiation for the settlement of this question. The President, in
his message to Congress in the month of December following, strongly
urged the necessity of such a negotiation; and Her Majesty's Government, in the same month of December, repeated the proposal. It was
again favourably received by the President, but, from various causes,
all further proceedings were suspended on the part of the United
States.
Some doubt appeared to exist respecting the seat of the proposed
negotiation; and in order to revive this matter, Her Majesty's Government, in a despatch to Mr. Fox, dated the 18th of August last, authorized
that gentleman to declare- that in case Washington should be preferred
by the President, Her Majesty's Government would agree to that
arrangement.
Although Her Majesty's Government would not object to follow any
course which might be decidedly preferred by the Government of the
United States, they have acquired the conviction that, under present
circumstances, and during the meeting of Congress, the best prospect of
success would be afforded by opening the negotiation at Washington.
The recent message of the President, delivered on the 5th instant, has
just been received in this country. It adverts at some length to the sub-
ject of the Oregon Territory, and in no very conciliatory manner; but
this has produced no change in the intentions of Her Majesty's Government. It is our desire, as it is our duty, to make every effort, consistently
with the honour and essential interests of the country, to bring this matter
to a speedy and amicable settlement.
On your arrival, therefore, at Washington, you will repeat to the
United States' Secretary of State, the desire of Her Majesty's Government
to carry on the negotiation; and you will inform him that you are furnished with the requisite full powers to enter upon it with any person
whom the President may appoint to meet you.
In order to provide for the immediate acceptance of that proposition
by the President, I proceed to give you the neeessary instructions for
your guidance. 8
11 ,v
No. 11.
»
Mr. Pakenham to the Earl of Aberdeen.—(Received March 14.)
(Extract.) Washington, February 27, 1844.
CONSIDERING the attempts which have from time to time been
made to lead the American people to believe that the Government of the
United States were more active than the Government of England in endeavouring to effect a settlement of the Oregon Question, and the resolutions which have been proposed during the past and present sessions of
Congress for the summary solution of that question, by proceeding to the
occupation of the disputed territory, I thought it advisable, as soon as
possible after my arrival at Washington, to take a first step towards the
fulfilment of your Lordship's instructions upon that important subject, by
officially informing the Secretary of State, of the desire of Her Majesty's
Government to resume negotiations for the adjustment of a line of
boundary.
For this purpose 1 delivered to Mr. Upshur, on the 24th instant, a
note, a copy of which I have the honour to inclose, expressing my readiness to confer with him, with a view to ulterior negotiation on the matter
in question, whenever it might suit his convenience. On that occasion
Mr. Upshur simply informed me that he would answer my note in a few
days. Yesterday his answer, of which I also inclose a copy, was delivered to me, appointing the morning of to-day for our first conference.
My reason for laying before your Lordship these otherwise unimportant
communications, is that I think it of consequence, with a view to what
may happen hereafter, that the advance which has thus been made on
behalf of Her Majesty's Government towards negotiation should be
authentically recorded.
My conversation with Mr. Upshur, of this morning, although strictly
of a preliminary character, was not altogether unsatisfactory. In the
first place, it has elicited the fact that the negotiation on the part of the
United States is to be confided to Mr. Upshur; an arrangement from
which I am inclined to augur favourably, on account of the opinion
entertained by Mr. Fox of that gentleman's integrity and good faith.
Mr. Upshur has further assured me of his entire disposition to carry
on the negotiation in a fair spirit of compromise, and above all to endeavour, whatever may be the result, that matters shall not be left in a worse
state, with reference to the relations between the two countries, than they
are at present.
| We must, at least, take care," he said, and with great appearance
of sincerity, " that if we should not succeed in effecting an arrangement,
there shall be no quarrel."
Inclosure 1 in No. 11.
Mr. Pakenham to Mr. Upshur.
Washington, February 24, 1844.
AMONG the matters at present under the consideration of the two
Governments, there is none respecting which the British Government are
more anxious to come to an early and satisfactory arrangement with the
Government of the United States, than that relating to the boundaries of
the Oregon or Columbia Territory.
The Undersigned, Her Majesty's Envoy Extraordinary and Minister
Plenipotentiary, has accordingly been instructed to lose no time in entering into communication with the Secretary of State of the United States
upon this subject.
„ m
In fulfilment, then, of the commands of his Government, the Undersigned has the honour to acquaint Mr. Upshur, that he will be ready to
confer with him with a view to ulterior negotiation on the subject in question, whensoever it shall suit Mr. Upshur's convenience.
The Undersigned, &c,
(Signed) R. PAKENHAM.
Inclosure 2 in No. 11,
Mr. Upshur to Mr. Pakenham.
Department of State,
Washington, February 26, 1844.
THE Undersigned, Secretary of State of the United States, has the
honour to acknowledge the receipt of the note dated the 24th instant,
from Mr. Pakenham, Her .Bidtannic Majesty's Envoy Extraordinary and
Minister Plenipotentiary, in which he states that he will be ready to confer
with the Undersigned, with the view to ulterior negotiation on the subject
of the boundaries of the Oregon or Columbia Territory, whensoever it shall
suit his convenience.
In reply, the Undersigned has the honour to inform Mr. Pakenham
that he will receive him for that purpose, at the Department of State, tomorrow at eleven o'clock a»3£»
The Undersigned, &c,
(Signed) A. P. UPSHUR.
No. .12.
Mr. Pakenham to the Earl of Aberdeen.—(Received May 13.)
My Lord, Washington, April 14, 1844.
SINCE Mr. Calhoun's accession to the office of Secretary of State,
nothing has been done in the affair of Oregon; .his attention having been
<effi3bhisively devoted to the negotiation of the Treaty with Texas, which
formsthe subject of my preceding despatch of tfais-date.
But as that matter is now concluded, as far as the Executive branch
flaf the Government is concerned, I suppose that Mr. Calhoun will be at
leisure to attend to the Oregon negotiation in time to allow me to report
something on that important subject by the next regular mail.
I have, &c,
(Signed) R. PAKENHAM.
No. 13.
Mr. Pakenham to the Earl of Aberdeen.—(Received May 16.)
My Lord, Washington, April 28, 1844.
NOTHING has yet been done in the affair of the Oregon Boundary,
Mr. Calhoun continuing to say that he has not yet had time to acquire
the necessary information to enable him to enter on the negotiation.
I have, &c.,
(Signed) R. PAKENHAM.
&
'Ki'i No. 14.
Pakenham to the Earl of Aberdeen.—(Received May 29.)
Washington, May 13, 1844.
I HAVE again to report to your Lordship that nothing has yet been
in the Oregon negotiation.
A few days ago Mr. Calhoun informed me that his time had been so
much taken up with other matters of pressing importance, that he had been
unable to look into the papers connected with that question j and he gave
me to understand that he should probably be obliged to defer the negotiation until after the adjournment of Congress, which it is supposed will
take place in the course of next month.
wmm
No. 15.
Mr. Pakenham to the Earl of Aberdeen.—(Received August 14.)
(Extract.) Washington, July 29, 1844. g
A FEW days after the dispatch of the last packet, I again inquired
of Mr. Calhoun how soon it might be likely to suit his convenience to
enter into communication with me on the subject of the Oregon Boundary.
He replied, as he had already stated on former occasions, that he had
not yet had time to make himself acquainted with the details of the question ; that as Congress was no longer in session, he did not think the
matter was one of immediate urgency; and that as it was his intention to
go home to South Carolina early next month, he proposed to take with
him the papers relating to the question, in order that he might, at his
leisure, prepare himself to enter formally on the proposed negotiation on
his return to Washington.
I told him that, much as Her Majesty's Government desired to see
the question of Oregon satisfactorily disposed of, it was not their wish to
press this Government inconveniently respecting it 1 but that, on the
other hand, considering the impatience which had been manifested upon
the subject during the last and preceding sessions of Congress, and the
observations which had been more than once put forth tending to create
the belief that Her Majesty's Government were not in reality desirous of
meeting this Government fairly on the question, I felt it to be my duty to
place something on record, which should prove that there was no want of
readiness on our part to proceed with the negotiation at the earliest
moment consistent with the convenience of the Government of the United
States ; and that I therefore intended, with his permission, to address a
letter to him repeating what I had already said to him on various occasions in the above sense. 11
Inclosure in,No. 15.
Mr. Pakenham to Mr. Calhoun.
Sir, Washington, July 22, 1844.
IN the archives of the Department of State will be found a note which
I had the honour to address on the 24th February last to the late Mr.
Upshur, expressing the desire of Her Majesty's Government to conclude
with the Government of the United States a satisfactory arrangement
respecting the boundary of the Oregon or Columbia Territory.
The lamented death of Mr. Upshur, which occurred within a few days
after the date of that note; the interval which took place between that
event and the appointment of a successor; and the urgency and importance of various matters which offered themselves to your attention immediately after your accession to office, sufficiently explain why it has not
hitherto been in the power of your Government, Sir, to attend to the
important matter to which I refer.
But the session of Congress having been brought to a close, and the
present being the season of the year when the least public business is
usually transacted, it occurs to me that you may now feel at leisure to
proceed to the consideration of that subject. At all events it becomes my
dutv to recall it to your recollection, and to repeat the earnest desire of
Her Majesty's Government, that a question on which so much interest is
felt in both countries, should be disposed of at the earliest moment consistent with the convenience of the Government of the United States.
(Signed) R.' PAKENHAM.
W\
m
No. 16.
Mr. Pakenham to the Earl of Aberdeen.—(Received September 15.)
(Extract.) Washington, August 29, 1844.
ON the 22nd of this month I received from Mr. Calhoun a note, a
copy of which I have the honour to inclose, informing me that he was
now at leisure to confer with me on the subject of the Oregon Boundary.
In conformity with his proposal, our first conference took place on
the following day, the 23rd instant, when, after mutual assurances of the
desire of our respective Governments to approach the question in a fair
spirit of compromise, and to spare no pains to effect a settlement of it
upon terms consistent, with the honour and just interests of either party,
we proceeded to examine the actual state of the question as it had
remained since the last unsuccessful attempt to adjust it.
Mr. Calhoun then expressed his desire to receive from me any fresh
proposal which I might be empowered to offer on the part of Her Majesty's
Government, tending to an approximation of the views of the two Governments. I told him that I should be ready to offer such a proposal at our
next conference, when I hoped that he also would be prepared to suggest
some arrangement by which the views and expectations of the two
Governments might be reconciled.
Our second conference took place on the 26th, when I laid before him
the proposal* authorized by your Lordship's instructions relative to a
free port either on the mainland or on Vancouver's Island, south of the
49th degree of north latitude.
This proposal was at once declined by Mr. Calhoun, as altogether
inadequate. He then informed me that before we proceeded farther with
the negotiation, it was his intention to prepare a written statement of the
case of the United States as it presented itself to his view, and taking into
account certain new circumstances affecting it, which had come into
existence since the temporary arrangement of 1827 was concluded.    That
* See page 27, Minute of a Conference, &c.
C2 12
this statement he would deliver to me, to be either answered by myself, or
referred to Her Majesty's Government, as I might think proper.
I of course could not do otherwise than accede to the course of proceeding thus proposed by Mr. Calhoun; and it now remains to be seen
what new arguments he is prepared to bring forward, either to give
strength to the claim of this country as originally presented, or to invalidate that of Great Britain.
Inclosure in No. 16.
m
Mr. Calhoun to Mr. Pakenham.
Department of State,
Sir, Washington, August 22, 1844.
THE various subjects which necessarily claimed my attention on
entering on the duties of my office have heretofore, as you justly suppose
in your note of the 22nd of July last, prevented me from appointing a time
to confer with you, and enter on the negotiation in reference to the Oregon
Territory.
These have, at length, been dispatched; and in reply to the note
which you did. me the honour to address to me, of the date above mentioned, I have to inform you that I am now ready to enter on the negotiation, and for that purpose propose a conference to-morrow, at 1 o'clock
p. m., at the Department of State, if perfectly convenient to you, but if not,
at any other which it may suit your convenience to appoint.
The Government of the United States participates in the anxious
desire of that of Great Britain that the subject may be early and satisfactorily arranged.
I have, &c,
(Signed) J. C. CALHOUN.
No. 17.
Mr. Pakenham to the Earl of Aberdeen.—(Remimd September 30.)
My Lord, WasMngt&n\ September 12, 1844.
YOUR Lordship will have been informed by my despatch of 29th
August of what had taken place up to that date on the subject of the
€&egon negotiation.
I have now the honour to transmit, for your Lordship's information,
a copy of a statement presented by Mr. Calhoun, explaining his reasons
for declining the proposal which I had made to him in accordance with
your Lordship's instructions, which he says would have the effect of
restricting the possessions of the United States, to limits far more circumscribed than their claims clearly entitle them to.
For the present Mr. Calhoun limits himself to the entire region
drained by the Columbia River, to which he asserts that they .are fairly
entitled on the several grounds detailed in his statement.
1 do not thinfethat your Lordship will find in this paper anything of
importance that has not already been urged in other words by the gentle-
Men who represented the United States in the previous negotiations, with
the exception, perhaps, of what is said of the rapid increase of population
in the Valley of the Mississippi, which Mr. Calhoun now refers to as justifying a claim on the grounds of continuity.
Mr. Cathoun, your ILordship will perceive, divides the claim of the
United States to the territory drained by the Columbia into their own
proper claiffits, by virtue of priority of discovery, and priority of exploration and settlement, and those derived from France and Spain. In my
answer to hi&statement,, a copy of which I have the honour to inclose, I
endeavour to skew that the claim derived from France is good for
nothing; that the claim derived from Spain is restricted by the stipula- 1&
tions of the Nootka Convention ; and that, as relates to discovery and
exploration, we can refer to discoveries both antecedent to, and posterior
to, their alleged discovery of the mouth of the Columbia, which would
place the British claim under that head at least upon a par with the
claim of the United States.
I also endeavour to prove that, considering the circumstances on
both sides, the arrangement proposed by Great Britain was fair arid
liberal, and that it did ample justice to the claims of the United States.
I am conscious, my Lord, that in my counter-statement, nothing is
said that had not already been said, and far more forcibly, by my predecessors in the negotiation; but your Lordship will be pleased to recollect that the matter has been so thoroughly investigated and debated
in former discussions as to make it very difficult to throw any new
light upon it.
At the conclusion of Mr. Calhoun's statement allusion is made to the
" other claims which the United States may have to other portions of the
territory." This has obliged me to request that he will define more particularly what are the claims to which he thus alludes.
1 have, &c,
ss|
(Signed)
R. PAKENHAM.
Inclosure 1 in No. 17.
Statement of the American Plenipotentiary, containing the Claims of the
United Stales to the Oregon Territory^
THE Undersigned, American Plenipotentiary, declines the proposal of
the British Plenipotentiary on the ground that it would have the effect of
restricting the possessions of the United States to limits far more circumscribed than their claims clearly entitle them to. It proposes to limit
their northern boundary by a iine drawn from the Rocky Mountains
along the 49th parallel of latitude to the north-easternmost branch of the
Columbia River, ami thence down, the middle of that river to the sea,
giving to Great Britain all the country north, and to the United States,
all south of that line, except a detached territory extending on the Pacific
and the Straits of Fuca, from Bulfinch's Harbour to Hood's Canal. To
which it is proposed, iu addition, to make free to the United States any
port which the United States' Government might desire, either on the
mainland, or on Vancouver's Island, south of latitude 49°.
By turning to the map hereto annexed, and on which the proposed
boundary is marked in pencil, it will be seen that it assigns to Great
Britain almost the entire region on its north side drained by the Columbia
River, and lying on its northern bank. It is not deemed necessary to
state at large the claims of the United States to this territory and the
grounds on which they rest in. order to make good the assertion that it
restricts the possessions of the United States within narrower bounds
than they are clearly entitled to. It will be sufficient for this purpose to
show that they are fairly entitled to. the entire region drained by the river;
and to the establishment of this point the Undersigned proposes accordingly to limit his remarks at present.
Our claims to the portion of the territory drained by the Columbia
River may be divided into those we have in our own proper right and
those we have derived from France and Spain. We ground the former,
as against Great Britain, on priority of discovery, and priority of exploration and settlement ; we rest our claim to discovery, as against her, on
that of Captain Gray, a citizen of the United States, who, in the ship
"Columbia," of Boston, passed its bar and anchored in the river, ten
miles above its mouth, on the 11th of May, 1792; and who afterwards
sailed up the river twelve or fifteen miles, and left it on the 20th of the
same month,, calling*it "Columbia," after his ship, which name it still
retains. On these facts our claim to the discovery and entrance into the
river rests.    They are too well attested to be controverted; but th'ey 14
mm
III:
have been opposed by the alleged discoveries of Meares and Vancouver.
It is true that the former explored a portion of the coast through which
the Columbia flows into the Ocean, in 1788 (five years before Captain
Gray crossed the bar, and anchored in the river), in order to ascertain
whether the river, as laid down in the Spanish charts, and called the St.
Roe, existed or not; but it is equally true that he did not even discover it.
On the contrary, he expressly declares in his account of the voyage, as
the result of his observations, that " we can now safely assert that there
is no such river as that of the St. Roe, as laid down in the Spanish
charts :" and as if to perpetuate his disappointment, he called the promontory lying north of the  inlet   where he expected  to  discover  it,
Cape Disappointment, and the inlet  itself, Deception  Bay. j'^lt is also
true that Vancouver, in April, 1792, explored the same coast; but it is
no less so, that he failed to discover the river, of which his own journal
furnishes the most conclusive evidence, as well as his strong conviction
that no such river existed.    So strong was it, indeed, that when he fell
in with Captain Gray shortly  afterwards, and was  informed  by  him
that he had been off the mouth of a river in latitude 49° 10', whose
outset was so strong as to prevent his entering, he remained still incredulous and strongly expressed himself to that effect in his journal.    It
was  shortly  after this  interview  that  Captain Gray again visited its
mouth, crossed its bar, and sailed up the river, as has been  stated.
After he left it, he visited Nootka Sound, where he communicated his
discoveries to Quadra, the Spanish Commandant at that place, and gave
him a chart and description of the mouth of the river.    After his departure, Vancouver arrived there in September, when he was informed
of the discoveries of Captain Gray, and obtained from Quadra, copies of
the chart he had left with him.    In consequence of the information thus
obtained he was induced to visit again that part of the coast.    It was.
during this visit that he entered the river on the 20th of October and
made his survey.
From these facts it is manifest that the alleged discoveries of
Meares and Vancouver cannot, in the slightest degree, shake the claim
of Captain Gray to priority of discovery. Indeed so conclusive is the
evidence in his 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. Such and so incontestible is the evidence
of our claim, as against Great Britain, from priority of discovery as to
the mouth of the river, crossing its bar, entering it, and sailing up its
stream, on the voyage of Captain Gray alone, without taking into consideration the prior discovery of the Spanish navigator, Heceta, which will
be more particularly referred to hereafter.
Nor is the evidence of the priority of our discovery of the head
branches of the river, and its exploration, less conclusive. Before the
Treaty was ratified by which we acquired Louisiana in 1803, an expedition was planned, at the head of which were placed Meriwether, Lewis,
and William Clark, to explore the River Missouri and its principal
branches to their sources ; and then to seek and trace to its termination in
the Pacific, some stream, " whether the Columbia, the Oregon, the Colorado, or any other which might offer the most direct and practicable
water-communication across the continent for the purpose of commerce."
The party began to ascend the Missouri in May, 1804, and in the summer '
of 1805, reached the head waters of the Columbia River. After crossing
many of the streams falling into it, they reached the Kooskooskie, in
latitude 43° 34'; descended that to the principal southern branch, which
they called Lewis ; followed that to its junction with the great northern
branch, which they called Clark; and thence descended to the mouth of
the river, where they landed and encamped on the north side, on Cape
Disappointment, and wintered. The next spring they commenced their
return, and continued their exploration of the river, noting its various
branches, and tracing some of the principal; and finally arrived at St.
Louis in September, 1806, after an absence of two years and three
months. It was this important expedition which brought to the knowledge of the world this great river, the greater by far on the western side 15
of this continent, with its numerous branches, and the vast regions
through which it flows above the point to which Gray and Vancouver had
. ascended.
It took place many years before it was visited and explored by any
subject of Great Britain, or of any other civilized nation, so far as we are
informed. It as clearly entitles us to the claim of priority of discovery as
to its head branches, and the exploration of the river and region through
which it passes, as the voyages of Captain Gray and the Spanish navigator Heceta entitle us to priority in reference to its mouth and the
entrance into its channel. Nor is our priority of settlement less certain.
Establishments were formed by American citizens on the Columbia as
early as 1809 and 1810. In the latter year a company was formed in
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 establishment on the south side of the river, a few miles above Point
George, where they were visited in July following by Mr. Thompson, 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 Okinegan
with the north branch of the Columbia, about six hundred miles above its
mouth, and the other on the Spoken, a stream falling into the north
branch some fifteen miles above.
These posts passed into the possession of Great Britain during the
war which was declared the next year; but it was provided by the first
Article of the Treaty of Ghent, which terminated it, that | all territories,
places, and possessions whatever, taken by either party from the other
during the war, or which may be taken after the signing of the Treaty,
excepting the islands hereafter mentioned (in the Bay of Fundy), shall be
restored without delay." Under this provision, which embraces all the
establishments of the American Company on the Columbia, Astoria was
formally restored on the 6th of October, 1818, by agents duly authorized
on the part of the British Government to restore the possession, and to an
agent duly authorized on the part of the United States' Government to
receive it, which placed our possession where it was before it passed into
the hands of British subjects.
Such are the facts on which we rest our claims to priority of discovery and priority of exploration and settlement, as against Great Britain,
to the region drained by the Columbia River. So much for the claims we
have in our own proper right to that region.
To these we have added the claims of France and Spain. The former
we obtained by the Treaty of Louisiana, ratified in 1803, and the latter
by the Treaty of Florida, ratified in 1819. By the former we acquired all
the rights which France had to Louisiana, | to the extent it now has
(1803) in the hands of Spain, and that it had when France possessed it,
and as it should be after the treaties subsequently entered into by Spain
. and other States." By the latter His Catholic Majesty " ceded to the
United States all his rights, claims, and pretensions to the country lying
west of the Rocky Mountains and north of a line drawn on the 42nd
parallel of latitude, from a pojnt on the south banks of the Arkansas in
that parallel to the South Sea; that is, to the whole region claimed by
Spain west of those mountains and north of that line."
The cession of Louisiana gave us undisputed right west of the Mississippi, extending to the summit of the Rocky Mountains, and stretching
south between that river and those mountains to the possessions of Spain,
the line between which and ours was afterwards determined by the
Treaty of Florida. It also added much to the strength of our title to the
region beyond the Rocky Mountains by restoring to us the important
link of continuity westward of the Pacific, which had been surrendered by
the Treaty of 1763, as will be hereafter shown.
That continuity furnishes a just foundation for a claim of territory,
II
v.,
Si!
si m
in connection with those of discovery and occupation, would seem unquestionable. It is admitted by all that neither of them is -limited by the
precise spot discovered or occupied. It is evident that in order to make
either available it must extend at least some distance beyond that actually
discovered or occupied, but how far, as an abstract question, is a matter
of uncertainty. It is subject in each case to be influenced by a vari^y^f
considerations. In the case of an island it has been usually maintained
in practice to extend the claims of discovery or occupancy to the whole.
So, likewise, in the case of a river, it has been usual to extend them to the
entire region drained by it, more especially in cases of a discovery and
^settlement at the mouth,—and emphatically so, when accompanied by
exploration of the river and region through which it flows; such, it is
believed, may be affirmed to be the opinion and practice in such cases
since the discovery of this continent. How far the claim of continuity
may extend in other cases is less perfectly defined, and can be settled
only by reference to the circumstances attending each. When this continent was first discovered Spain claimed the whole in virtue of fhe
grant of the Pope ; but a claim so extravagant and unreasonable was not
acquiesced in by other countries and could not be long maintained.
Other nations, especially England and France, at an early period contested her claim. They fitted out voyages of discovery and made settlements on the eastern coast of North America. They efeimed for their
settlements usually specific limits along the coasts or bays on which they
were formed, and generally a region of corresponding width extending
across the entire continent to the Pacific Ocean ; such was the character
of the limits assigned by England in the charters which she granted to
her former colonies, now the United States, when there were no special
reasons for varying from it.
How strong she regarded her claim to the region covered by these
charters, and extending westwards of her settlements, the war between
her and France, which was terminated by the Treaty of Paris, 1763, faip-
nishes a striking illustration. That great contest which ended so gloriously for England, and effected so great and durable a change on this
continent, commenced in a conflict between her claims and those of France,
resting on her side on this very right of continuity extending westwsfefB.
from her settlements to the Pacific Ocean; and on the part of France on
the same right, but extending to the region drained by the Mississippi
and its waters, on the ground of settlement and exploration. iFheir
respective claims which led to the war first clashed on the River Ohio,
the waters of which the colonial charters in their western extension
covered, but which France had been unquestionably the first to settle
and explore. If the relative strength of these different claims may be
tested by the result of that remarkable contest, that of continuity westward must be pronounced to be the stronger of the two; England has
had at least the advantage of the result, and would seem to be foreclosed
against contesting the principle, particularly as against us, who contributed so much to that result, and on whom that contest and her example
and pretensions, from the first settlement of our country, have contributed
to impress it so deeply and indelibly.
But the Treaty of 1763, which terminated that memorable and eventful struggle, yielded, as has been stated, the claim and all the chartered
rights of the colonies beyond the Mississippi. The Seventh Article established that river as the permanent boundary between the possessions of
Great Britain and France on this continent. So much as relates to the
subject is in the following words: " The confines between the dtominiims
of His Britannic Majesty in that part of the world (the Continent of
America) shall be fixed irrevocably by a line drawn along the middle of
the River Mississippi from its s-ewrce to the River Ibtermlle, and from
thence by a line drawn along the middle of this river, and gfee Lake
Maurepas and Ponchartrain to the sea."
This important stipulation, which thus establishes the Mississippi as
the line "fixed irrevocably" between the dominions of the two countries
on this continent, in effect extinguishes in favour of France whatever
claims Great Britain may have had to the region lying west of the Missis- 17
sippi. It of course could not affect the right of Spain, the only other
nation which had any pretence of claim west of that river, but it prevented the right of continuity previously claimed by Great Britain, from
extending beyond it, and transferred it to France, The Treaty of Louisiana restored and vested in the United States all the claims acquired by
France, and surrendered by Great Britain under the provisions of that
treaty to the country west of the Mississippi, and among others the one
in question. Certain it is that France had the same right of continuity,
in virtue of her possessions in Louisiana,* and the extinguishment of the I
right of England by the Treaty of 1763, to the whole country west of the -
Rocky Mountains, and lying west of Louisiana, as against Spain, which
England had to the country westward of the Alleghany Mountains, as
against France, with this difference, that Spain had nothing to oppose to
the claim of France at the time but the right of discovery (and even that
England has since denied), while France had opposed to the right of England | in her case, that of discovery, exploration, and settlement. It is
therefore not at all surprising that France should claim the country v/est
of the Rocky Mountains (as may be inferred from her maps),- on the same
principle that Great Britain had claimed and dispossessed her of the
regions west of the Alleghany; or that the United States, as soon as they
had acquired the rights of France, should assert the same claim, and take
measures immediately after to explore it, with a view to occupation and
settlement.. But since then we have strengthened our title by adding to
our own proper claims and those of France, the claims also of Spain, by
the Treaty of Florida, as has been stated.
The claims which we have acquired from her, between the Rocky
Mountains and the Pacific, rest in her priority of discovery. Numerous
voyages of discovery, commencing with that of Maldonado in 1528, and
ending with that under Galiano and Valdez in 1752, were undertaken by
her authority along the north-western coast of North America. That
they discovered and explored not only the entire coast of what is now •
called the Oregon Territory, but still further north, are facts too well
established to be controverted at this day. The voyages which they performed will accordingly be passed over at present, without being particularly alluded to, with the exception of that of Heceta. His discovery of
the mouth of the Columbia River has been already referred to. It was >
made on the 15th of August, 1775, many years anterior to the voyages of
Meares and Vancouver, and even prior to Cook's, who did not reach the
north-west coast till 1778. The claims it gave to Spain of priority of
discovery were transferred to us, with all others belonging to her by the
Treaty of Florida, which, added to the discoveries of Captain Gray,'
place our right to the discovery of the mouth and entrance into the inlet
and river beyond all controversy.
It has been objected that we claim under various and conflicting titles
which mutually destroy each other; such indeed might be the fact while
they were held by different parties; but since we have rightly acquired
both those of Spain and France, and concentrated the whole in our hands,
they mutually blend with each other, and form one strong and connected
chain of title against the opposing claims of all others, including Great
Britain.
In order to present more fully and perfectly the grounds on which
our claim to the region in question rests it will now be necessary to turn
back to the time when Astoria was restored to us under the provisions of
the Treaty of Ghent; and to trace what has since occurred between the
two countries in reference to the territory, and inquire whether their
respective claims have been affected by the settlements since made in the
territory by Great Britain, or the occurrences which have since taken
place.
The restoration of Astoria took place under the provisions of the
Treaty of Ghent on the 6th day of October, 1818, the effect of which was-
to put Mr. Prevost, the agent authorized by our Government to receive it,
in possession of the establishment, with the right at all times to be
reinstated and considered the party in possession, as was explicitly
admitted by Lord Castlereagh in the first negotiation between the two
#•:■!
PI Hi
18
4 *■
m
Governments in reference to the Treaty. The words of Mr. Rush, our
Plenipotentiary on that occasion, in his letter to Mr. Adams, then Secretary
of State, of the 14th of February, 1818, reporting what passed between
him and his Lordship are, " That Lord Castlereagh admitted in the most
ample extent our right to be reinstated, and to be the party in possession,
while treating of the title."
The negotiation terminated in the Convention of the 20th October,
1818, the third Article of which is in the following words : " 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 claim of any Power or State to any part of the
said country; the only object of the High Contracting Parties, in that
respect, being to prevent disputes and differences among themselves."
The two acts, the restoration of our possession and the signature of
the Convention, were nearly contemporaneous, the latter taking place but
fourteen days subsequent to the former; we were then, as admitted by
Lord Castlereagh, entitled to be considered as the party in possession : and
the Convention, which stipulated that the territory should be free and
open for the term of ten years, from the date of its signature, to the
vessels, citizens, and subjects of the two countries, without prejudice to
any claim which either party may have to any part of the same, preserved
and perpetuated all our claims to the territory, including the acknowledged
right to be considered the party in possession as perfectly, during the
period of its continuance, as they were the day the Convention was signed;
of this there can be no doubt.
After an abortive attempt to adjust the claims of the two parties to
the territory in 1824, another negotiation was commenced in 1826, which
terminated in renewing on the 6th of August, 1827, the Third Article of
the Convention of 1818, prior to its expiration. It provided for the indefinite extension of all the provisions of the Third Article of that Convention, and also, that either party might terminate it at any time it might
think fit, by giving one year's notice, after the 20th of October, 1828. It
took, however, the precaution of providing expressly, u that nothing contained in this Convention, or in the Third Article of the Convention of the
20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect the claims which either of the contracting
Parties may have to any part of the country westward of the Stony or
Rocky Mountains." That Convention is now in force, and has continued
to be so since the expiration of that of 1818. By the joint operation of
the two our right to be considered the party in possession and all the
claims we had to the territory, while in possession, are preserved in as
full vigour as they were at the date of its restoration in 1818, without
being affected or impaired by the settlements since made by the subjects
of Great Britain.
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 mouth of the river by Heceta above
stated. But it is not in this particular only that it has operated in our
favour. Our well-founded claim, grounded on continuity, has greatly
strengthened during the same period, by the rapid advance of our
population towards the territory; its great increase, especially in the
Valley of the Mississippi, as well as the greatly increased facility of passing to the territory by more accessible routes ; and the far stronger and
rapidly swelling tide of population that has recently commenced flowing |
into it.
>a m it jwm i uvT«is«i4..«]iifcT»mNUn wi mjf.i 19
When the first convention was concluded in 1818 our whole population did not exceed nine millions of people. The portion of it inhabiting
the States in the great Valley of the Mississippi was probably under the
million seven hundred thousand, of which not more than two hundred
thousand were on the west side of that river. Now our population may
be safely estimated at not less than nineteen millions, of which at least
eight millions inhabit the states and territories in the Valley of the Mississippi, and of which upwards of one million are in the states and territories
west of that river. This portion of our population is now increasing far
more rapidly l^an ever, and will in a short time fill the whole tier of
States on its western bank.
, To this great increase of population, especially in the Valley of the
Mississippi, may be added the increased facility of reaching the Oregon
Territory in consequence of the discovery of the remarkable pass in the
Rocky Mountains at the head of the La Platte. The depression is so
great and the pass so smooth that loaded waggons now travel with facility
from the Missouri to the navigable waters of the Columbia River. These
joint causes have had the effect of turning the current of our population
towards the territory; and an emigration estimated at not less than one
thousand, during the last, and fifteen hundred during the present year, has
flowed into it. The current thus commenced will no doubt continue to flow
with increased volume hereafter. There can then be no doubt, now that the
operation of the same causes which impelled our population westwards
from the shores of the Atlantic across the Alleghany to the Valley of the
Mississippi will impel them onward with accumulating force across the
Rocky Mountains into the Valley of the Columbia, and that the whole
region drained by it is destined to be peopled by us.
Such are our claims to that portion of the territory, and the grounds
on which they rest. The Undersigned believes them to be well founded,
and trusts that the British Plenipotentiary will see in them sufficient
reasons why he should decline his proposal.
The Undersigned Plenipotentiary abstains, for the present, from presenting the claims which the United States may have to other portions of
the territory.
The Undersigned, &c, (Signed) J. C. CALHOUN.
Washington, September 3, 1844.
Inclosure 2 in No. 17.
D
Statement of the British Plenipotentiary, containing the Claims of Great
Britain to the Oregon Territory.
THE Undersigned, British Plenipotentiary, has studied with much interest and attention the statement marked A, presented by the American
Plenipotentiary, setting forth the grounds on which he declines the proposal offered by the British Plenipotentiary as a compromise of the difficulties of the Oregon Question. The arrangement contemplated by that
proposal would, in the estimation of the American Plenipotentiary, have
the effect of restricting the possessions of the United States to limits far
more circumscribed than their claims clearly entitle them to.
The claims of the United States to the portion of territory drained by
the Columbia River are divided into those adduced by the United States
in their own proper right and those which they have derived from France
and Spain.
The former, as against Great Britain, they ground on priority of discovery, and priority of exploration and settlement,
The claim derived from France originates in the Treaty of 1803 by
which Louisiana was ceded to the United States, with all its rights and appurtenances, as fully and in the same manner as they had been acquired by
the French Republic ; and the claim derived from Spain is founded on the
Treaty concluded with that Power in the year 1819, whereby His Catholic
Majesty -ceded to the United States all his rights, claims, and pretensions
D 2 20
to the territories lying east and north of a certain line terminating on the
Pacific inthe forty-second degree of north latitude.
Departing from the order in which these three separate claims are
presented by the American Plenipotentiary, the British Plenipotentiary
will first beg leave to observe, with regard to the claim derived from
France, that he has not been able to discover any evidence tending to
• establish the belief.that Louisiana, as originally possessed by France, and
afterwards transferred to Spain, then retroceded by Spain to France, and
ultimately ceded by the latter Power to the United States, extended in. a
westerly direction beyond the Rocky Mountains, i There is, on the other
hand, strong reason to suppose that, at the time when Louisiana was
ceded to the United States, its acknowledged western boundary was the
Rocky Mountains. Such appears to have been the opinion of President
Jefferson under whose auspices the acquisition of Louisiana was accomplished.
In a letter written by him in August 1803, are to be found the following words:—"The boundaries (of Louisiana) which I deem not admitting question, are the high lands on the western side of the Mississippi,
inclosing all its waters, the Missouri, of course, and terminating in the
line drawn from the north-west point of the Lake of the Woods, to the
nearest source of the Mississippi, as lately settled between Great Britain
and the United States."
In another and more formal document dated in July, 1807, that is to
say, nearly a year after the return of Lewis and Clarke from their expedition to the Pacific, and fifteen years after Gray had entered the Columbia
River, is recorded Mr. Jefferson's opinion of the impolicy of giving offence
to Spain by any intimation that the claims of the United States extended
to the Pacific,—and we have the authority of an American historian, distinguished for the attention and research which he has bestowed on the
whole subject of the Oregon Territory, for concluding that the western
boundaries of Louisiana, as it was ceded by France to the United States,
were those indicated by nature, namely, the high lands separating the
Avaters of the Mississippi from those flowing into the Pacific.
From the acquisition, then, of Louisiana, as it was received from
France, it seems clear that the United States can deduce no claim to territory west of the Rocky Mountains. But, even it were otherwise, and if
France had ever possessed or asserted a claim to territory west of the
Rocky Mountains, as appertaining to the territory of Louisiana, that
claim, whatever it might be, was necessarily transferred to Spain, when
Louisiana was ceded to that Power in 1762, and of course became subject
to the provisions of the Treaty between Spain and Great Britain, of 1790,
which effectually abrogated the claim of Spain to exclusive dominion over
the unoccupied parts of the American continent.
To the observations of the American Plenipotentiary respecting the
effect of continuity in furnishing a claim to territory the Undersigned has
not failed to pay due attention, but he submits that what is said on this
head may more properly be considered as demonstrating the greater
degree of interest which the United States possess, by reason of contiguity,
in acquiring territory in that direction, than as affecting in any way the
question of right.
The Undersigned will endeavour to show hereafter that in the proposal put in on the part of Great Britain the natural expectations of the
United States on the ground of contiguity have not been disregarded.
Next comes to be examined the claim derived from Spain.
It must, indeed, be acknowledged that, by the Treaty of 1819, Spain
did convey to the United States all that she had the power to dispose of on
the north-west coast of America, north of the forty-second parallel of latitude, but she could not by that transaction annul or invalidate the rights
which she had by a previous transaction acknowledged to belong to
another Power.
By the Treaty of 28th October, 1790, Spain acknowledged in Great
Britain certain rights with respect to those parts of the western coast of
America not already occupied.
This acknowledgment had reference especially to the territory which
Kgwfc ULnfr vm •> m*T-3im!m.*m+&<^w*i 21
forms the subject of the present negotiation. If Spain could not make
good her own right to exclusive dominion over those regions still less
could she confer such a right on another Power; and hence Great Britain
argues that from nothing deduced from the Treaty of 1819 can the
United States assert a valid claim to exclusive dominion over any part of
the Oregon Territory.
There remains to be considered the claim advanced by the United
States on the ground of prior discovery and prior exploration and settlement.
In that part of the memorandum of the American Plenipotentiary
which speaM of the Spanish title it is stated that the mouth of the river,
afterwards called the Columbia River, was first discovered by the Spanish
navigator, Heceta. The admission of this fact would appear to be altogether irreconcileable with a claim to priority of discovery from anything
accomplished by Captain Gray. To one, and to one only, of those commanders can be conceded the merit of first discovery. If Heceta's claim
is acknowledged then Captain Gray is no longer the discoverer of the
Columbia River; if, on the other hand, preference be given to the achievement of Captain Gray then Heceta's discovery ceases to be of any value.
But it is argued that the United States now represent both titles, the title
of Heceta and the title of Gray; and therefore that under the one or the
other, it matters not which, enough can be shown to establish a case of
prior discovery as against Great Britain. This may be true as far as
relates to the act of first seeing and first entering the mouth of the
Columbia River; but if the Spanish claim to prior discovery is to prevail
whatever rights may thereon be founded are necessarily restricted by the
stipulations of the Treaty of 1790 which forbid a claim to exclusive possession. If the act of Captain Gray in passing the bar and actually
entering the river is to supersede the discovery of the entrance, which is
all that is attributed to Heceta, then the principle of progressive or gradual
discovery being admitted as conveying, in proportion to the extent of discovery or exploration, superior rights, the operations of Vancouver in
entering, surveying, and exploring, to a considerable distance inland, the
River Columbia, would, as a necessary consequence, supersede the discovery
of Captain Gray, to say nothing of the act of taking possession, in the
name of his Sovereign, which ceremony was duly performed and authentically recorded by Captain Vancouver.
This brings us to the examination of the conflicting claims of Great
Britain and the United States on the ground of discovery, which may be
said to form the essential point in the discussion, for it has above been
shown that the claim derived from France must be considered as of little
or no weight; while that derived from Spain, in as far as relates to
exclusive dominion, is neutralized by the stipulations of the Nootka
Convention.
It will be admitted that when the United States became an independent nation they possessed no claim, direct or indirect, to the Columbia
Territory. Their western boundary in those days was defined by the
Treaty of 1783 ; Great Britan, on the contrary, had at that time already
directed her attention to the north-west coast of America, as is sufficiently shown by the voyage and discoveries of Captain Cook who, in
1778 visited and explored a great portion of it from latitude 44° northwards.
That Great Britain was the first to acquire what may be called
beneficial interests in those regions by commercial intercourse will not
either be denied; in proof of this fact we have the voyages of the several
British subjects who visited the coast and adjacent islands previously to
the dispute with Spain ; and that her commerce, actual as well as prospective, in that part of the world was considered a matter of great national
importance is shown by the resolute measures she took for its protection
when Spain manifested a resolution to interfere with it.
The discoveries of Meares in 1788, and the complete survey of
the coast and its adjacent islands, from about latitude 40° northwards, which was effected by Captain Vancouver, in 1792, 1793, and 1794,
would appear to give to Great Britain, as against the United States, as
fill
m 22
2Jt;i!Ji
strong a claim on the ground of discovery and exploration coastwise as
can well be imagined, limited only by what was accomplished by Gray at
the mouth of the Columbia, which, as far as discovery is concerned, forms
the strong point on the American side of the question.
In point of accuracy and authenticity, it is believed that the performances of Cook and Vancouver stand pre-eminently superior to those of
any other country whose vessels had in those days visited the north-west
coast, while in point of value and importance surely the discovery of a
single harbour, although at the mouth of an important river, cannot, as
giving a claim to territory, be placed in competition with the vast extent
of discovery and survey accomplished by the British navigators.
As regards exploration inland entire justice must be done to the
memorable exploit of Messrs. Lewis and Clarke, but those distinguished
travellers were not the first who effected a passage across the Oregon
Territory, from the Rocky Mountains to the Pacific. As far back as 1793
that feat had been accomplished by Mackenzie, a British subject. In the
course of this expedition Mackenzie explored the upper waters of a river,
since called Fraser's River which, in process of time, was traced to its
junction with the sea, near the forty-ninth degree of latitude, thus forming,
in point of exploration, a counterpoise to the exploration of that part of
the Columbia which was first visited by Lewis and Clarke.
Priority of settlement is the third plea on which the American claim
proper is made to rest.
In 1811 an establishment for the purposes of trade was formed at the
south side of the Columbia River, near to its mouth, by certain American
citizens ; this establishment passed, during the war, into the hands of
British subjects, but it was restored to the American Government in the
year 1818 by an understanding between the two Governments. This is
the case of priority of settlement, since which it has not in reality been
occupied by the Americans. The American Plenipotentiary- lays some
stress on the admission attributed to Lord Castlereagh, then Principal
Secretary of State for Foreign Affairs, that the American Government had
the most ample right to be reinstated, and to be the party in possession,
while treating of the title. The Undersigned is not inclined to dispute an
assertion resting on such respectable authority, but he must observe, in
the first place, that the reservation implied by the words | while treating
of the title," exclude any inference which might otherwise be drawn from
the preceding words prejudicial to the title of Great Britain ; and further,
that when the authority of the American Minister is thus admitted, for an
observation which is pleaded against England, it is but fair that on the
part of the United States credit should be given to England for the
authenticity of a despatch from Lord Castlereagh to the British Minister
at Washington, which was communicated verbally to the Government of
the United States, when the restoration of the establishment called Astoria
or Fort George, was in contemplation, containing a complete reservation
of the right of England to the territory at the mouth of the Columbia.
(Statement of British Plenipotentiaries, December, 1826.)
In fine, the present state of the question between the two Governments appears to be this: Great Britain possesses and exercises, in common
with the United States, a right of joint occupancy in the Oregon Territory,
of which right she can be divested, with respect to any part of that
territory, only by an equitable partition of the whole between the two
Powers.
It is, for obvious reasons, desirable that such a partition should take
place as soon as possible, and the difficulty appears to be in devising a
line of demarcation whieh shall leave to each party that precise portion
of the territory best suited to its interest and convenience.
The British Government entertained the hope that by the proposal
lately submitted for the consideration of the American Government that
object would have been accomplished ; according to the arrangements
therein contemplated, the northern boundary of the United States west of
the Rocky Mountains, would, for a considerable distance, be carried along
the same parallel of latitude which forms their northern boundary on the
eastern side of those mountains, thus uniting the present Eastern Boun-
.IP* jjjii'-i.juwgw 23
dary of the Oregon Territory with the Western Boundary of the United
States from the 49th parallel downwards. From the point where the
49° of latitude intersects the north-eastern branch of the Columbia River,
called in that part of its course Mc Gillivray's River, the proposed line of
boundary would be along the middle of that river, till it joins the Columbia, then along the middle of the Columbia to the Ocean, the navigation of
the river remaining perpetually free to both parties.
In addition Great Britain offers a separate territory on the Pacific,
possessing an excellent harbour, with a further understanding that any
port_or ports,., whether on Vancouver's Island or on the Continent, south
of the 49th parallel, to which the United States might desire to have access,
Shall be made free ports.
It is believed that, by this arrangement, ample justice would be done
to the claims of the United States, on whatever ground advanced, with
relation to the Oregon Territory. As regards extent of territory they
would obtain, acre for acre, nearly half of the entire territory to be divided;
as relates to the navigation of the principal river, they would enjoy a perfect equality of right with Great Britain; and with respect to harbours, it
will be seen that Great Britain shows every disposition to consult their
convenience in that particular.
On the other hand, were Great Britain to abandon the line of the
Columbia as a frontier, and to surrender her right to the navigation of
that river, the prejudice occasioned to her by such an arrangement would,
beyond all proportion, exceed the advantage accruing to the United
States from the possession of a few more square miles of territory. It
must be obvious to every impartial investigator of the subject that in
adhering to the line of the Columbia Great Britain is not influenced by
motives of ambition with reference to extent of territory, but by considerations of utility, not to say necessity, which cannot be lost sight of, and
for which allowance ought to be made in an arrangement professing to be
based on considerations of mutual convenience and advantage.
The Undersigned believes that he has now noticed all the arguments
advanced by the American Plenipotentiary in order to show that the
United States are fairly entitled to the entire region drained by the
Columbia River. He sincerely regrets that their views on this subject
should differ in so many essential respects.
It remains for him to request that, as the American Plenipotentiary
declines the proposal offered on the part of Great Britain, he will have the
goodness to state what arrangement he is, on the part of the United States,
prepared to propose for an equitable adjustment of the question; and more
especially, that he will have the goodness to define the nature and extent
of the claims which the United States may have to other portions of the
territory, to which allusion is made in the concluding part of his statement, as it is obvious that no arrangement can be made with respect to
part of the territory in dispute while a claim is reserved to any portion
of the remainder.
The Undersigned, &c, (Signed) R. PAKENHAM.
Washington, September 12, 1844.
M.
sir
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if
II-
f!;.s.
No. 18.
Mr. Pakenham to the Earl of Aberdeen.—(Received October 15.)
(Extract.) Washington, September 28, 1844.
WITH reference to my despatches of 29th August and of 12th September on the subject of the Oregon negotiation I have now the honour
to transmit a copy of a second paper presented by Mr. Calhoun, in rejoinder
to my reply to his first statement, a copy of which was transmitted with
my despatch of 12th September. 24
i  :'M'
I.
:r?»'!
>»
"1
Inclosure 1 in No. 18.
B
Counter-Statement of the American Plenipotentiary.
s.ij' Department of State,
Washington, September 20, 1844.   ;
THE Undersigned, American Plenipotentiary, has read with attention
the counter-statement of the British Plenipotentiary, but without weakening his confidence in the validity of the title of the United States to the
territory, as set forth in his statement marked A. As therein set forth,
it rests,"in the first place, on priority of discovery sustained by their own
proper claims, and by those derived from Spain through the Treaty of
Florida.
The Undersigned does not understand the counter-statement as denying that the Spanish navigators were the first to discover and explore the
entire coasts of the Oregon Territory ; nor that Heceta was the first who
discovered the mouth of the Columbia River; nor that Captain Gray was
the first to pass its bar, enter its mouth, and sail up its stream | nor that
these, if jointly held by the United States, would give them the priority
of discovery which they claim.
On the contrary, it would seem that the counter-statement, from the
ground it takes, admits that such would be the case on that supposition ;
for it assumes that Spain, by the Nootka Sound Convention, in 1790, divested herself of all claims to the territory founded on the prior discovery
and explorations of her navigators; and that she could consequently
transfer none to the United States by the Treaty of Florida. Having put
aside the claims of Spain by this assumption, the counter-statement
next attempts to oppose the claims of the United States by those founded
on the voyages of Captains Cook and Meares, and to supersede the discovery of Captain Gray, on the ground that Vancouver sailed further up
the Columbia River than he did, although he affec^d it by the aid of his
discoveries and charts.
The Undersigned forbears to enter into an examination of the truth
or error of the position which the counter-statement has assumed, without
assigning the reasons in support of it. It is sufficient on his part to say
that in his opinion there is nothing in the Nootka Sound Convention, or in
the transactions which led to it, or the circumstances attending it, to
warrant the assumption. The Convention relates wholly to other subjects ; and contains not a word in reference to the claims of Spain. It is
on this assumption that the counter-statement rests its objection to the
well-founded American claims to priority of discovery; without it there
would not be a plausible objection left to them.
The two next claims on which the United States rest their title to the
territory as set forth in statement A, are founded on their own proper
right, and cannot possibly be affected by the assumed claims of Great
Britain, derived from the Nootka Convention.
The first of these is priority of discovery and exploration of the head
waters and upper portion of the Columbia River, by Lewis and Clarke,
by which that great stream was first brought to the knowledge of the
world, with the exception of a small portion near the Ocean, including its
mouth. This the counter-statement admits, but attempts to set off
against it the prior discovery of Mackenzie of the head waters of Frazer's
River—quite an inferior stream which drains the northern portion of the
territory. It is clear that whatever right Great Britain may derive from
his discovery, it can in no degree affect the right of the United States to
the region drained by the Columbia, which may be emphatically called
the River of the territory.
The next of these, founded on their own proper right, is priority of
settlement. It is not denied by the counter-statement that we formed the
. first settlements in the portion of the territory drained by the Columbia
River; nor does it deny that Astoria, the most considerable of them, was
restored under Article III. of the Treaty of Ghent, by agents on the part
of Great Mritain, duly authorized to make the restoration, to an agent on $5
the part of the Usitfced States, duly authorized to receive it. Nor does it
deny tfhat, in virtue thereof, they have the right to be reinstated and considered the party in possession, while treating of the title, as was admitted
by Lord Castlereagh in the Negotiation of 1818; nor that the Convention
of 1818, signed a few days after the restoration [of Astoria], and that of
1827, which is still in force, 'have preserved and perpetuated, until now, all
the rights they possessed to the territory at the time, including that of
being reinstated and considered the party in possession, -while the question of title was depending, as is now the case. It is true it attempts to
weaken the effect of these implied admissions, in the first place, by designating positive treaty stipulations as " an understanding between the two
Governments," but a change of phraseology cannot possibly transform
treaty obligations into a mere understanding; and in the next place, by
stating that we have not, since the restoration of Astoria, actually occupied it; but that cannot possibly affect our right to be reinstated and to
be considered in possession, secured to us by the Treaty of Ghent, implied
in the act of restoration, and since preserved by positive treaty stipulations. Nor can the remarks of the counter-statement in reference to
Lord Castlereagh's admission weaken our right of possession secured by
the Treaty, and its formal and unconditional restoration by duly authorized agents. It is on these, and not on the denial of the authenticity of
Lord Castlereagn's despatch, that the United States rest their right of
possession, whatever verbal communication the British Minister may
liasve made at the time to our Secretary of State; and it is on these that
they may safely rest it, setting aside altogether the admission of Lord
'Castlereagh.
The next claims on which our title to the territory rests are those
derived from Franee by the Treaty ceding Louisiana to the United States,
including those she derived from Great Britain by the Treaty of 1763.
It established the Mississippi as the irrevocable boundary between the
territories of France and Great Britain, and thereby the latter surrendered to France all her claims on this continent west of that river,
including, of course, all within the chartered limits of her colonies which
extended to the Pacific Ocean. On these, united with those of France,
as the possessor -of Louisiana, we rest our claim of continuity, -as
.•expending to that ocean, without an opposing, claim, except that of Spain,
•fl^hich we have since acquired, and consequently removed, by the Treaty
f Florida.
The existence of these claims the counter-statement denies, on the
authority of Mr. Jefferson ; but, -as it appears to the Undersigned, without adequate reasons. He does not understand Mr. Jefferson as denying
itibat the United States acquired any claim to the Oregon Territory by the
acquisition of Louisiana, either in his letter of 1803, referred to by the
counter-statement, and from which it gives an extract, or in the document
of 1807, to which it also refers. It is manifest from the extract itself, that
the object of Mr. Jefferson was, not to state the extent of the claims
acquired with Louisiana, but simply to state how far its unquestioned
boundaries extended, and these he limited westwardly by the Rocky
Mountains. It is in like manner manifest from the document, as cited by
the counter-statement, that his object was not to deny that our claims
extended to the territory, but simply to express his opinion of the impolicy
in the then state of our relations with Spain of bringing them forward.
This, so far from denying that we had claims, admits them by the clearest
implication. If, indeed, in either case, his opinion had been equivocally
expressed, the prompt measures adopted by him to explore the territory
after the Treaty was negotiated, but before it was ratified, clearly show
that it was his opinion not only that we had acquired claims to it, but
highly important claims, which deserved prompt attention.
In addition to this denial of tour claims to the territory on the
jawjfchority of Mr. Jefferson, which tbe evidence relied on does not seem to
sustain, the counter-sitatementiiBitimatesfaaii -objection to continuity as the
foundation of a r^ght^-on the gronnd that it may anore properly be considered (to use its own words) as demonstrating the greater degree of
Wterest which the United States possessed by reason of contiguity, in
E IM
m
I !''il'iil
26
acquiring territory in a westward direction. Contiguity may, indeed, be
regarded as one of the elements constituting the right of continuity, which
is more comprehensive, and is necessarily associated with the right of
occupancy, as has been shown in Statement A. It also shows that the
laws which usage has established in the application of the right to this
continent, give to the European settlements on its eastern coasts an
indefinite extension westward. It is now too late for Great Britain to
deny a right on which she has acted so long, and by which she has
profited so much, or to regard it as a mere facility not affecting in any
way the question of right. On what other right has she extended her
claims westwardly to the Pacific Ocean, from her settlements round
Hudson's Bay; or expelled France from the east side of the Mississippi in
the war which terminated in 1763 ?
As to the assumption of the counter-statement that Louisiana, while
in the possession of Spain, became subject to the Nootka Sound Convention, which, it is alleged, abrogated all the claims of Spain to the territory,
including those acquired with Louisiana, it will be time enough to consider it after it shall be attempted to be shown that such, in reality, was
the effect. In the mean time, the United States must continue to believe
that they acquired from France by the Treaty of Louisiana important
and substantial claims to the territory.
The Undersigned cannot consent to a conclusion to which, on a
review of the whole ground, the counter-statement arrives, that the present
state of the question is, that Great Britain possesses and exercises, in
common with the United States, a right of joint occupancy in the Oregon
Territory, of which she can be divested only by an equitable partition of
the whole between the two Powers. He claims, and he thinks he has
shown, a clear title, 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 while treating of the title, 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 negotiation, 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 a joint occupancy merely, until the
question of title to the territory is fully discussed. It is, in his opinion,
only after a discussion which shall fully present the titles of the parties
respectively to the territory that their claims to it can be fairly and satisfactorily adjusted. The United States desire only what they may deem
themselves justly entitled to, and are unwilling to take less. With their
present opinion of their title,, the British Plenipotentiary must see that the
proposal which he made at the second conference, and which he more fully
sets forth in his counter-statement, falls far short of what they believe
themselves justly entitled to.
In reply to the request of the British Plenipotentiary that the
Undersigned should define the nature and extent of the claims which the
United States have to the other portions of the territory, and to which
allusion is made in the concluding part of Statement A, he has the honour
to inform him, in general terms, that they are derived from Spain by the
llllprida Treaty, and are founded on the discoveries and exploration of
her navigators, and which they must regard as giving them a right to
the extent to which they can be established, unless a better can be
opposed. (Signed) J. C. CALHOUN.
Inclosure 2 in No. 18.
Protocols of the Conferences between the British and American
Plenipotentiaries.
ON the 23rd of August, 1844, a conference was held by appointment
at the office of the Secretary of State in the city of Washington, between
the Honourable John C. Calhoun, Secretary of State of the United States,
and the Right Honourable Richard Pakenham, Her Britannic Majesty's
Envoy Extraordinary and Minister Plenipotentiary, both duly authorized
by their respective Governments to treat of the respective claims of the
KWr*rv»Wfc Wm*1* '■ BM—'JltMPaw 27
two countries to the Oregon Territory, with the view to establish a permanent boundary between the two countries westward of the Rocky
Mountains to the Pacific Ocean.
The conference was opened by assurances on both sides of the desire
of their respective Governments to. approach the question with an earnest
desire, and, in the spirit of compromise, to effect an adjustment consistent
with the honour and just interests of either party. The Plenipotentiaries
then proceeded to examine the actual state of the question as it stood at
the last unsuccessful attempt to adjust it.
This done, the American Plenipotentiary desired to receive from the
British Plenipotentiary any fresh proposal he might be instructed to offer
on the part of his Government towards affecting an adjustment.
The British Plenipotentiary said he would be ready to offer such a
proposal at their next conference, hoping that the American Plenipotentiary would be ready to present a proposal on the part of his Government.
The conference adjourned to meet on Monday the 26th instant.
(Signed) R. PAKENHAM.
          J. C. CALHOUN.
On the 26th of August, 1844, the second conference was held between
the respective Plenipotentiaries, at the office of the Secretary of State.
The British Plenipotentiary offered a paper containing a proposal
for adjusting the conflicting claims of the two countries. The American
Plenipotentiary declined the proposal. Some remarks followed in reference
to the claims of the two countries to the territory, when it became apparent that a more full understanding of their respective views in reference to them was necessary at this stage in order to facilitate future
proceedings.
It was accordingly agreed that written statements containing their
views should be presented before any further attempt should be made to
adjust them.
It was also agreed that the American Plenipotentiary should present
a statement at the next conference; and that he should inform the British
Plenipotentiary when he was prepared to hold it.
(Signed) R. PAKENHAM.
                  J. C. CALHOUN.
Minute of the Second Conference between the Plenipotentiaries of Great
Britain and the United States, held at the Office of the Secretary of
State, on the 26th August, 1844.
The minute of the preceding conference having been read over and
signed the British Plenipotentiary informed the Plenipotentiary of the
United States that the proposal which he was instructed to offer on
behalf of his Government, with a view to a settlement of the Northwestern Boundary Question, was as follows:—
That whereas the proposals made on both sides in the course of the
last negotiation had been mutually declined, Her Majesty's Government
were prepared, in addition to what had already been offered on the part of
Great Britain, and in proof of their earnest desire to arrive at an arrangement suitable to the interest and wishes of both parties, to undertake to
make free to the United States any port or ports which the United States'
Government might desire, either on the mainland, or on Vancouver's
Island south of latitude 49°.
On the 2nd of September, 1844, the third conference was held at the
office of the Secretary of State, according to appointment.
The American Plenipotentiary presented a written statement of his
views of the claims of the United States to the portion of territory drained
by the waters of the Columbia River, marked A; and containing his
reasons for declining to accept the proposal offered by the British Plenipotentiary at their second conference.
(Signed) R. PAKENHAM.
                     J. C. CALHOUN.
E 2
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28-
On the 12th of September, 1844, the fourth conference was held at the
office of the Secretary of State, when the British Plenipotentiary presented
his statement marked D, counter to that of the American Plenipotentiary,,
marked A, presented at the preceding conference.
(Signed) R. PAKENHAM.
J. C. CALHOUN.
At the fifth conference, held at the office of the Secretary of State, on,
the 20th of September, the American Plenipotentiary delivered to the
British Plenipotentiary a statement, marked B, in rejoinder to his eoun-
ter-statement marked Bv
(Signed) R. PAKENHAM.
J. C. CA.LHOUN.
The sixth conference was held on the 24th of September, when tlae?
British Plenipotentiary stated that he had read with due attention the
statement marked B, presented by the American Plenipotentiary at the
last conference, but that it had not weakened the impression previously
entertained by nim,. with regard to the claims and rights of Great Britain,
as explained in the paper lately presented by him, marked D. That,
reseuving for a future occasion s«ch observations as he might wish to
present, by way of explaoatibma^w3i4 reply to the statement last presented
by the American Plenipotentiary, he was for the present obliged to
declare, with reference: to the concluding part of that statement, that he
did not feel authotthfled to enter into discussion respecthlgvthe temtory
north of 49th parallel of latitude, which was' understood by the Britishr
Government t© form the basis of negotiation? on the side of the United
SfeateSy as^ the line of the Columbia formed that on the side of Great
Britain.
- i That the proposal which he had presented was offered by G&eat
Britain as an honourable (jompronxiBe of the claims and pretensions of both,
parties, and that it would of course be understood as having been made
sufcmect to the condition recorded in the' protocol of the third conference
held between" the respective Plenipotentraries in London?, in December,
1826. (Signed^ R. PAKENHAM.
J. C. CALHOUN.
m
No. 19.
'Mhe Earl of Aberdeen to Mr. PaUenkam.
Sir, Foreign Office, November 1, 1844.
YOUR several despatches respecting the progress of your negotiations with the United States' Government on the Oregon Question, down
to the date of the 28th September, have engaged the attentive consideration of Her Majesty's Government.
I have much pleasure in informing you that the manner in which you
have conducted those negotiations has met with the entire approval of
Her Majesty's Government.
Notwithstanding the concessions we may be prepared to make, on
taking a general view of the matter as it now stands, it appears to Her
Majesty's Government that there remains little reasonable hope that the
United States will relax their pretensions, and meet us in any scheme for
a compromise which wre could safely and honourably adopt. Under these
circumstances, and taking into view the state of excitement so prevalent
in the United States upon this subject, by which the free action of the
Government is greatly fettered, if not altogether paralysed, I think it
will be desirable, if an opportunity should offer, to have recourse, without
delay, to arbitration, as the mode most likely to be available for the
settlement of the question.
You will, therefore, do well to profit by any favourable opportunity
wnich may present itself to sound the American Government on this
point, and if you should find them disposed to accede to such a mode of
adjustment, you will formally propose it to the Secretary of State.
.Tiuii'ttj *s*»t maq*. 29-
This proceeding hamag been once settled by an interchange of notes,
it will then be for the parties to* deterBttine by Convention, as in the case
of the North-East Boundary, the choice of the- aarbiter, and) the mode in
which their respective cases shall be laid, before ham.
I am, &e,
(Signed).
ABERDEEN.
No. 20.
Mr. Pakenham to the Earl of Aberdeen.—(Received December 17.)
(Extract.) Washington, November 28, 1844.
I HAVE had the honour to receive your Lordship's despatches of 1st
and 4th November.
In obedience to the instructions contained in the former of these despatches I will take advantage of the first suitable opportunity to sound
the American Government on tke subject of settling the Oregon Question
by arbitration.
No. 21.
Mr. Pakenham to tk&Earl of Aberdeen.—(Renewed December 304'
(Extract.) Washington, December 12, 1844.
IN consequence of the tedious passage of the " Caledonia'' steam-
packet, which brought out the last mail from England, and of a delay
wiich occurred in the transmission of the correspondence from Boston
to New York, it was not until the day before yesterday that I had the
•honour to receive your Lordship's despatches of 18th November.
I have the honour to acquaint your Lordship that a proper opportunity
has not yet occurred to carry into; effect the iaajstructions contained in your
Lordship's despatch of 1st November, by which I was directed to propose
to the American Governmen#to settle the Oregon Question by arbitration.
Your Lordship will not fail to observe the notice which is taken of
the Oregon Question in the President's message, copies of which I
forward.
Inclosure in No. 21.
Extract from the President's Message of December 3, 1844.
SINCE the close of your last session a negotiation has been formally
entered upon between the Secretary of State and Her Britannic Majesty's
Minister Plenipotentiary and Envoy Extraordinary residing at Washington, relative to the rights of their respective nations in and over the Oregon
Territory. That negotiation is still pending. Should it, during your
session, be brought to a definitive conclusion, the result will be promptly
communicated to Congress. I would, however, again call your attention
to the recommendations contained in previous messages, designed to protect and facilitate emigration to that territory. The establishment of
military posts at suitable points upon the extended line of land travel
would enable our citizens to migrate in comparative safety to the fertile
regions below the falls of the Columbia, and make the provision of the
existing Convention for the joint occupation of the territory by the subjects of Great Britain and the citizens of the United States more available
than heretofore to the latter. These posts would continue places of rest
for the weary emigrant, where he would be sheltered securely against the
danger of attack from the Indians, and be enabled to recover from the
exhaustion of a long line of travel. Legislative enactments should also
be made which should spread over him the aegis of our laws, so as to
afford protection to his person and property when he shall have reached asa
i
m>s
30
his distant home. In this latter respect the British Government has been
much more careful of the interests of such of her people as are to be
found in that country than have the United States. She has made necessary provision for their security and protection against the acts of the
viciously-disposed and lawless, and her emigrant reposes in safety under
the. panoply of her laws. Whatever may be the result of the pending
negotiation such measures are necessary. It will afford me the greatest
pleasure to witness a happy and favourable termination to the existing
negotiation upon terms compatible with the public honour; and the best
efforts of the Government will continue to be directed to this end.
No. 22.
Mr. Pakenham to the Earl of Aberdeen.—(Received.February 14.)
(Extract.) Washington, January 29, 1845.
I HAVE the honour herewith to inclose a copy of a letter which I
addressed on the 15th of this month to the United States'<-Secretary dfs,?
State, proposing, in fulfilment of the instructions contained in your Lord-*/
ship's despatch of 1st November, the settlement of the Oregon Question5
by arbitration.
From Mr. Calhoun's answer, a copy of which I also inclose, your
Lordship will perceive with regret that the President does not think
proper to accede to the proposal, still entertaining the hope, as Mr.
Calhoun is pleased to say, that the question can be settled by the negotiation now pending between the two countries.
Notwithstanding this unfavourable reply from the American Government I think that no harm will result, but rather some good, from our
having made the offer. ^p
Inclosure 1 in No. 22.
Mr. Pakenham to Mr. Calhoun.
Sir, »s^ Washington, January 15, 1845.
I DID not fail to communicate to Her Majesty's Government all that
had passed between us with reference to the question of the Oregon
Boundary up lo the end of last September, as detailed in the statements
interchanged by us, and in the protocols of our conferences.
Those papers remain under the consideration of Her Majesty's
Government; and I have reason to believe that at no distant period I shall
be put in possession of the views of Her Majesty's Government on the
several points which became most prominent in the course of the discussion.
But considering on the one hand the impatience which is manifested
in the United States for a settlement of this question, and on the other
the length of time which would probably be still required to effect a
satisfactory adjustment of it between the two Governments, it has
occurred to Her Majesty's Government that, under such circumstances,
no more fair or honourable mode of settling the question could be adopted
than that of arbitration.
This proposition I am accordingly authorized to offer for the consideration of the Government of the United States, and, under the supposition that it may be found acceptable, further to suggest that the consent
of both parties to such a course of proceeding being recorded by an interchange of notes, the choice of arbiter, and the mode in which their respective cases shall be laid before him, may hereafter be made the subject of a
more formal agreement between the two Governments.
I have, &e.,
(Signed) R. PAKENHAM.
£Y<KfflANnrM9V 31
Inclosure 2 in No. 22.
Mr. Calhoun to Mr. Pakenham.
Department of State,
Sir, Washington, January 21, 1845.
I HAVE laid before the President your communication of the 15th
instant, offering on the part of Her Majesty's Government to submit the
settlement of the question between the two countries, in reference to the
Oregon Territory, to arbitration.
The President instructs me to inform you that while he unites with
Her Majesty's Government in the desire to see the question settled as
early as may be practicable, he cannot accede to the offer.
Waiving all other reasons for declining it, it is sufficient to state that
he continues to entertain the hope that the question may be settled by
the negotiation now pending between the two countries; and that he is
of opinion it would be unadvisable to entertain a proposal to resort to
any other mode, so long as there is hope of arriving at a satisfactory
settlement by negotiation; and especially to one which might rather
.retard than expedite its final adjustment.
I avail, &e,
(Signed) J. C. CALHOUN.
No. 23.
The Earl of Aberdeen to Mr. Pakenham.
(Extract.) Foreign Office, March 3, 1845.
UNDER the confident persuasion that the bill having for its object
to authorize the President to take measures for occupying the Oregon
Territory on. the part of the United States, after having first given
notice to Great Britain of the renunciation of the Treaty of 1818—27,
in conformity wijth the engagement reciprocally taken to that effect by
the two countries, will be rejected by the Senate, Her Majesty's
Government are desirous of making another effort for accomplishing
the adjustment of the Oregon controversy by arbitration. It appears
to them that if ever there was a case peculiarly fitted and calling
for that mode of settlement, it is that in question. The possession
of the litigated country is an object of no immediate or pressing national
interest or importance to either party; therefore any moderate delay
which might occur in finally determining the right to that possession is
comparatively immaterial. On the other hand the artificial excitement
which has been aroused in both countries, with the violent proceedings
of the House of Representatives, seems to afford but little chance of being
able to arrive by direct negotiation at any equitable compromise.
Under these circumstances, unless some fair proposition for settlement by negotiation should have been made to you by the United States'
Secretary of State, on the rejection of the bill of occupation by the Senate,
which we anticipate, you will again urge the Secretary of State in .the
strongest manner, and for the sake of averting the evils of a serious misunderstanding between the two countries, to press on the President the
expediency of resorting, in a spirit of mutual compromise, to a settlement
by arbitration, as the only practicable mode of finally adjusting our differences on this important question. /jijl.t,
32
No. 24
Mr. Pakenham to the Earl of Aberdeen.—(Received March 18.)
(Extract.) Washington, February 26, 1845.
I REQUEST your Lordship's attention to the inclosed copy of a
message lately sent by the President to the Senate, in answer to a resolution of that body requesting information as to the state of the Oregon
Question.
m>
I
Inclosure in No. 24.
President's Message.
To the Senate of the United States :
:IM answer to the resolution of the Senate of the 11th December, 1844,
requesting the President to lay before the Senate, if in his judgment that
may be done 'without prejudice to the public interests, a copy of any
instructions which may have been given by the Executive to the American
Minister in England, on the subject of the title to and occupation of the
Territory of Oregon, since the 4th day of March, 1841; also a copy of any
correspondence which may have passed between this Governmentand
that of Great Britain, or between either of the two Governments and the
Minister of the other, in relation to that subject since that time—1 have
to say that, in my opinion, as the negotiation is still pending, the information sought for cannot be communicated without prejudice to the
public service, i deem it, however, proper to add that considerable progress has been made in the discussion, which has been carried on in a
very amicable spirit between the two Governments; and that there is
reason to hope that it may be terminated, and the negotiation be brought
io.a close wiilhtin.a short period.
I have delayed answering .the resolution under the expectation
expressed in my annual message that the negotiation would have been
terminated before the close of the present session of Congress, and that
the information (CaHed for by the resolution of the Senate might be
communicated.
(Signed) JOHN TYLER.
WasMngton, February 19, 1845.
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No. 25.
Mr. Pakenhxim to the Earl of Aberdeen.—(Received April 14.)
'(Extract.) Washington, March 29, 1845.
SINCE the installation of the new Government I have had two conversations with Mr. Buchanan., Mr. Calhoun's successor in the office of
Secretary of State.
The first was on the occasion of a visit of ceremony which I paid him
on receiving official notice of his appointment; on which occasion he professed his desire to contribute by every means in his power to the continpr
ance of a good understanding with England.
At our second interview the subject of Oregon was introduced, when
I took occasion to inform him of the instructions which I had lately
received from your Lordship (those contained in your Lordship's despatch
of the 3rd instant) again to press on the Government of the United States
the expediency of resorting to a settlement by arbitration as the only
practicable mode of -finally adjusting our differences on this important
question.
Mr. Buchanan observed that he had not yet had an opportunity of
ascertaining what might be the views of the President on this particular 33
point connected with the Oregon Question; but he said he would not fail
to take advantage of the earliest moment to direct the President's attention to it.
For his own part, although he did not seem to be much taken with
the idea of an arbitration, he did not appear prepared altogether to reject
it; what he said was that he did not at all despair of effecting a settlement of the question by negotiation, "by adopting,'' to use his own words,
*' the principle of giving and taking."
No. 26.
The Earl of Aberdeen to Mr. Pakenha?n.
(Extract.) Foreign Office, April 18, 1845.
HER Majesty's Government have been gratified by learning from
your despatch of the 29th ultimo that the door does not appear to be altogether closed upon all chance of the settlement of the Oregon Question by
negotiation. On the contrary, they are willing to hope from the tenour
of that despatch that neither the President nor the new Secretary of State
may be found averse still to attempt such a mode of adjusting our differences.
No. 27.
Mr. Pakenham to the Earl of Aberdeen.—(Received June 1.)
(Extract.) Washington, May 13, 1845.
SINCE I had last the honour of writing to your Lordship I have had
some conversations with Mr. Buchanan, and yesterday rather a formal one,
respecting the present state of the Oregon negotiation.
I asked him to tell me frankly what course his Government intended to
pursue with a view to an amicable adjustment of that important question,
observing that your Lordship had heard with much satisfaction of the
friendly assurance which he had given to me soon after his accession to
office, and which I had lost no time in reporting to your Lordship, of the
desire of the present Administration to cultivate the best understanding
with England, and that your Lordship felt justified in hoping that there
would be found a confirmation of that good disposition in his manner of
dealing with the only question of any serious importance now pending
between the two countries.
Mr. Buchanan replied that I might feel no hesitation in repeating to
your Lordship, to the fullest extent, the manifestation already made by
him of the friendly disposition of this Government; that, with respect to
the question to which I had more immediately referred, he felt obliged to
say that the mode last proposed by Great Britain for a settlement of it,
that of arbitration, did not meet with the concurrence of the President
and his Cabinet; that they all entertained objections to that course of
proceeding; and that they preferred negotiation hoping, as they did hope,
that by negotiation a satisfactory result would at last be attained.
No. 28.
Mr. Pakenham to the Earl of Aberdeen.— (Received August 16.)
(Extract.) Washington, July 29, 1845.
I HAVE the honour herewith to transmit a copy of a paper which
was delivered to me by Mr. Buchanan on the 16th of this month, containing his proposal for the settlement of the Oregon Boundary.
If 34
Inclosure 1 in No. 28.
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•If,
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Mr. Buchanan to Mr. Pakenham.
J. B. Department of State,
Washington, July 12, 1845.
THE Undersigned, &e, now proceeds to resume the negotiation on
the Oregon Question, at the point where it was left by his predecessor.
The British Plenipotentiary, in his note to Mr. Calhoun of 12th September last, requests | that, as the American Plenipotentiary declines the
proposal offered on the part of Great Britain, he will have the goodness to
state what arrangement he is, on the part of the United States, prepared
to propose, for an equitable adjustment of the question, and, more
especially, that he will have the goodness to define the nature and extent
of the claims which the United States may have to other portions of the
territory to which allusion is made in the concluding part of his statement,
as it is obvious that no arrangement can be made with respect to a part
of the territory in dispute while a claim is reserved to any portion of the
remainder."
The Secretary of State will now proceed (reversing the order in
which these requests have been made), in the first place, to present the
title of the United States to the territory north of the Valley of the
Columbia; and will then propose on the part of the President the terms
upon which, in his opinion, this long-pending controversy may be justly
and equitably terminated between the parties.
The title of the United States to that portion of the Oregon Territory
between the Valley of the Columbia and the Russian Line, in 54° 40' north
latitude, is recorded in the Florida Treaty. Under this Treaty, dated on
the 22nd February, 1819, Spain ceded to the United States all her " rights,
claims, and pretensions" to any territories west of the Rocky Mountains,
and north of the 42nd parallel of latitude. We contend that, at the date
of this cession, Spain had a good title, as against Great Britain, to the
whole Oregon Territory; and if this be established, the question is then
decided in favour of the United States.
But the American title is now encountered at every step by declarations that we hold it subject to all the conditions of the Nootka Sound
Convention between Great Britain and Spain, signed at the Escurial oh
the 28th October, 1790. Great Britain contends that under this Convention the title of Spain was limited to a mere common right of joint occupancy with herself over the whole territory. To employ the language of
the British Plenipotentiary, % If Spain could not make good her own right
of exclusive dominion over those regions, still less could she confer such a
right on another Power; and hence Great Britain argues that from
nothing deduced from the Treaty of 1819 can the United States assert a
valid claim to exclusive dominion over any part of the Oregon Territory."
Hence it is that Great Britain, resting her pretensions on the Nootka
Sound Convention, has necessarily limited her claim to a mere right of
joint occupancy over the whole territory, in common with the United
States, as the successor of Spain, leaving the right of exclusive dominion
in abeyance.
It is then of the first importance that we should ascertain the true
construction and meaning of the Nootka Sound Convention.
If it should appear that this Treaty was transient in its very nature;
that it conferred upon Great Britain no right but that of merely trading
with the Indians whilst the country should remain unsettled, and making
the necessary establishments for this purpose; that it did not. interfere
with the ultimate sovereignty of Spain over the territory; and, above all,
that it was annulled by the war between Spain and Great Britain in 1796,
and has never since been renewed by the parties: then the British claim
to any portion of this territory will prove to be destitute of foundation.
It is unnecessary to detail the circumstances out of which this Convention arose. It is sufficient to say that John Meares, a British subject,
sailing under the Portuguese flag, landed at Nootka Sound in 1788, and 35
made a temporary establishment there for the purpose of building a
vessel; and that the Spaniards, in 1789, took possession of this establishment under the orders of the Viceroy of Mexico, who claimed for Spain,
the exclusive sovereignty of the whole territory in the north-west coast
of America up to the Russian line. Meares appealed to the British
Government for redress against Spain, and the danger of war between the
two nations became imminent. This was prevented by the conclusion of
the Nootka Sound Convention. That Convention provides, by its first and
second articles, for the restoration of the lands and buildings of which the
subjects of Great Britain had been dispossessed by the Spaniards, and the
payment of ail indemnity for the injuries sustained. This indemnity was
paid by Spain; but no sufficient evidence has been adduced that either
Nootka Sound, or any other spot upon the coast, was ever actually surrendered by that Power to Great Britain. All we know with certainty
is, that Spain continued in possession of Nootka Sound until 1795, when
she voluntarily abandoned the place. Since that period no attempt has
been made (unless very recently) by Great Britain or her subjects to
occupy either this or any other part of Vancouver's Island. It is thus
manifest that she did not formerly attach much importance to the exercise
of the rights, whatever they may have been, which she had acquired
under the Nootka Sound Convention.
The only other portion of this Convention important for the present
discussion will be found in the third and the fifth Articles. They are as
follows:—"Article 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 in landing on the coasts of those seas in places not already occupied, for the
purpose of carrying on their commerce with the natives of the country or
of making settlements there, the whole subject nevertheless to the;
restrictions specified in the three following articles." The material one of
which is Article V. 1 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."
It may be observed as a striking fact which must have an important
bearing against the claim of Great Britain, that this Convention, which
was dictated by her to Spain, contains no provision impairing the ultimate
sovereignty which that Power had asserted for nearly three centuries over
the whole western side of North America, as far north as the 61st degree
of latitude, and which had never been seriously questioned by any European nation. This had been maintained by Spain with the most vigilant
jealousy ever since the discovery of the American continent and had been
acquiesced in by all European Governments. It had been admitted, even
beyond the latitude 54° 40' north by Russia, then the only Power having
claims which could come in collision with Spain, and that too under a
Sovereign peculiarly tenacious of the territorial rights of her empire.
This will appear from the letter of Count Fernan de Nunez, the Spanish
Ambassador at Paris, to M. de Montmorin, the Secretary of the Foreign
Department of France, dated Paris, June 16, 1790. From this letter it
seems that complaints had been made by Spain to the Court of Russia,
against Russian subjects, for violating the Spanish territory on the northwest coast of America, south of the 61st degree of north latitude, in
consequence of which that Court, without delay, assured the King of
Spain, " that it was extremely sorry that the repeated orders issued to
prevent the subjects of Russia from violating in the smallest degree the
territory belonging to another Power should have been disobeyed."
This Convention of 1790 recognizes no right in Great Britain, either
present or prospective, to plant permanent colonies on the north-west coast
F 2
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36
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of America; or to exercise such exclusive jurisdiction over any portion of
it as is essential to sovereignty.    Great Britain obtained from Spain all
she then desired, a mere engagement that her subjects should | not be disturbed or molested in landing on the coasts of those seas in places not
already occupied for the purpose of carrying on their commerce with the
natives of the country, or of making settlements there."    What kind of
"settlements?"     This is not specified, but surely their character and
duration are limited by the object which the Contracting Parties had in
view.    They must have been such only as were necessary and proper 1 for
the purpose of carrying on commerce with the natives of the country."
Were these settlements intended to expand into colonies, to expel the
natives, to deprive  Spain of her   sovereign rights,   and to confer the
exclusive jurisdiction over the whole territory on Great Britain ?   Surely
Spain never designed any such results ; and if Great Britain has obtained
these concessions by the Nootka Sound Convention, it has been by the
most extraordinary construction ever imposed upon  human language.
But this Convention also stipulates that to these settlements which might
be made by the one party, | the subjects of the other shall have free
access, and shall carry on their trade without any disturbance or molestation."    What trade? certainly that" with the natives of the country,'' as
prescribed in the third Article; and this from the very nature of things
could continue only whilst the country should remain in possession of the
Indians.    On no other construction can this Convention escape from the
absurdities attributed to it by British statesmen, when under discussion
before the House of Commons:—"In every place in which we might
settle" (said Mr., afterwards Earl Grey) I access was left for the Spaniards:
where we might form a settlement on one hill, they might erect a fort on
another ; and a merchant must run all the risks of a discovery, and all
the expenses of an establishment for a property which was liable to be
the subject of continued dispute, and could never be placed upon a permanent footing."
Most certainly this Treaty was in its very nature temporary, and the
rights of Great Britain under it were never intended to " be placed upon
a permanent footing." It was to endure no longer than the existence of
those peculiar causes which called it into being. Such a treaty, creating
British and Spanish settlements intermingled with each other, and dotted
over the whole surface of the territory, wherever a British or Spanish
merchant could find a spot favourable for trade with the Indians, never
could have been intended for a permanent arrangement between civilized
nations.
But whatever may be the true construction of the Nootka Sound
Convention, it has in the opinion of the Undersigned long ceased to
exist.
The general rule of national law is that war terminates all subsisting
treaties between the belligerent Powers. Great Britain has maintained
this rule to its utmost extent. Lord Bathurst, in negotiating with Mr.
Adams in 1815, says, "that Great Britain knows of no exception to the
rule that all treaties are put an end to by a subsequent war between the
same parties."
Perhaps the only exception to this rule, if such it may be styled, is
that of a treaty recognizing certain sovereign rights as belonging to a
nation which had previously existed independently of any treaty engagements. These rights which the treaty did not create, but merely acknowledged, cannot be destroyed by war between the parties; such was the
acknowledgment of the fact by Great Britain, under the definitive Treaty
of 1783, that the United States were "free, sovereign, and independent."
It will scarcely be contended that the Nootka Sound Convention belongs
to this class of treaties. It is difficult to imagine any case in which a'
treaty containing mutual engagements still remaining unexecuted would
not be abrogated by war. The Nootka Sound Convention is strictly of
this character. The declaration of war, therefore, by Spain against Great
Britain in October, 1796, annulled its provisions, and freed the parties from
its obligations. This whole treaty consisted of mutual express engagements to be performed by the Contracting Parties.    Its most important
i mmiwi%■*!\m,\ w ■ i* rnnas 37
Article (the third), in reference to the present discussion, does not even
grant in affirmative term's, 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 this
is not such an engagement as will continue to exist in despite of war
between the parties. It is gone for ever unless it has been revived in
express terms by the Treaty of Peace, or some other treaty between the
parties. Such is the principle of public law and the practice of civilized
nations.
Has the Nootka Sound Convention been thus revived ? This depends
entirely upon the true construction of the Treaty of Madrid of the 24th of
August, 1814, which contains the only agreement between the parties
since the war of 1796, for the renewal of engagements existing previously
to^jthat date. The first of the three Additional Articles to this Treaty provide as follows:—" lt is agreed that pending the negotiation of a new
treaty of commerce Great Britain shall be admitted to trade with Spain
upoio^he same conditions as those which existed previously to 1796; all
the tn&aties of commerce which at that period subsisted between the two
nations*being hereby ratified and confirmed."
The first observation to be made upon this Article is that it is confined in terms to the trade with Spain, and does not embrace her colonies
or remote territories. These had always been closed against foreign
Powers. Spain had never conceded the privilege of trading with her
colonies to any nation except in the single instance of the " Asiento,"
which was abrogated in 1740; nor did any of the treaties of commerce
which were in force between the two nations previously in 1796 make
such a concession to Great Britain. That this is the true construction of
the Third Additional Article of the Treaty of Madrid appears conclusively
from another part of the instrument. Great Britain, by an irresistible
inference, admitted that she had acquired no right under it to trade with
•the colonies or remote territories of Spain, when she obtained a stipulation in the same Treaty, that "in the event of the commerce of the
Spanish American Colonies being opened to foreign nations, His Catholic
Majesty promises that Great Britain shall be admitted to trade with those
possessions as the most favoured nation."
But even, if the Third Article of the Treaty of 1814 were not thus
expressly limited to the revival of the trade of Great Britain with the
Kingdom of Spain in Europe, without reference to any other portion of
her dominions, the Nootka Sound Convention can never be embraced
under the denomination of a treaty of commerce between the two Powers.
It contains no provision whatever to grant or to regulate trade between
British and Spanish subjects. Its essential part, so far as concerns the
present question, relates not to any trade or commerce between the subjects of the respective Powers. It merely prohibits the subjects of either
from disturbing or molesting those of the other in trading with third
parties, the natives of the country. The grant " of making settlements,"
whether understood in its broadest or most restricted sense, relates to
territorial acquisition, and not to trade or commerce in any imaginable
form. , The Nootka Sound Convention then cannot in any sense be considered a treaty of commerce, and was not therefore revived by the
Treaty of Madrid of 1814. When the war commenced between Great
Britain and Spain in 1796, several treaties subsisted between them which
were both in title and substance treaties of commerce. These, and these
alone, were revived by the Treaty of 1814.
That the British Government itself had no idea in 1818 that the
Nootka Sound Convention was then in force may be fairly inferred from
their silence upon the subject during the whole negotiation of that year
on the Oregon Question. This Convention was not once referred to by
the British Plenipotentiaries. They then rested their claims on other
foundations. Surely that which is now their main reliance would not
have escaped the observation of such statesmen had they then supposed
it was in existence.
In view of all these considerations, the Undersigned respectfully
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Submits that if Great Britain has valid claims to any portion of the
Oregon Territory they must rest upon a better foundation than that of
the Nootka Sound Convention.
It is far from the intention of the Undersigned to repeat the arguments by which his predecessor (Mr. Calhoun) has demonstrated the
American title " to the entire region drained by the Columbia River and
He has shown that to the United States belongs the dis-
Columbia River, and that Captain Gray was the  first
who ever entered its mouth and  sailed up  its channel,
of his vessel; 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, passing
the winter of 1805-6 on its northern shore near the Ocean ; that the first
settlement upon this river was made by a citizen of the United States at
Astoria; and that the British Government solemnly recognized our right
to the possession of this settlement, which had been captured during the
war, by surrendering it up to the United States on the 6th day of October,
1818, in obedience to the Treaty of Ghent. If the discovery of the mouth
of a river, followed up within a reasonable time by the first exploration,
both of its main channel and of its branches, and appropriated by the
first settlements on its banks, do not constitute a title to the territory
drained by its waters in the nation performing these acts, then the principles consecrated by the practice of civilized nations ever since the
discovery of the New World must have lost their force. These principles
were necessary to preserve the peace of the world. Had they not been
enforced in practice clashing claims to newly-discovered territory and
perpetual strife among the nations would have been the inevitable result.
The title of the United States to the entire region drained by the
Columbia River and its branches was perfect and complete before the
date of the Treaties of joint occupation of October 1818, and August 1827;
and under the express provisions of these Treaties this title, whilst they
endure, can never be impaired by any Act of the British Government. In
the strong language of the Treaty of August, 1827, " nothing contained
in this Convention, or in the Third Article of the Convention of October,
1818, hereby continued in force, shall be construed to impair, or in any
manner affect, the claims which either of the Contracting Parties may
have to any part of the country westward of the Stony or Rocky Mountains." Had not the Convention contained this plain provision which has
prevented the respective Parties from looking with jealousy on the occupation of portions of the territory by the citizens and subjects of each
other, its chief object which was to preserve peace and prevent collisions
in those distant regions, would have been entirely defeated. It is then
manifest that neither the grant of this territory for a term of years made
by Great Britain to the Hudson's Bay Company in December, 1821, nor
the extension of this grant in 1838, nor the settlements, trading posts, and
forts,'which have been established by that Company under it, can in the
slightest degree strengthen the British or impair the American title to
any portion of the Oregon Territory. The British claim is neither better
nor worse than it was on the 20th of October, 1818, the date of the first
Convention.
The title of the United States to the Valley of the Columbia is older
than the Florida Treaty of February, 1819, under which the United States
acquired all the rights 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 were 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, either
expressed or implied.
The extraordinary proposition will scarcely be again urged that our
acquisition of the rights of Spain, under the Florida Treaty, can in any
manner weaken or impair our pre-existing title.    It may often become 39
expedient for nations, as it is for individuals, to purchase an outstanding
title merely fo* the sake of peace, and it has never heretofore been imagined that the acqufeition of such a new title rendered the old one less
valid. Under this principle a party having two titles would be confined
to his worst and would forfeit nis best. Our acquisition of the right* of
Spain, then, under the Florida Treaty, whilst it cannot affect the prior
title of the United States to the Valley of the Columbia, has rendered it
more clear and unquestionable before the world. We have a perfect right
to claim under both these titles, and the Spanish title alone, even if it
were necessary to confine ourselves to it, would, in the opinion of the
President, be good, as against Great Britain, not merely to the Valley of
the Columbia, but the whole territory of Oregon.
Our own American title 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 assurance against all mankind; whilst our superadded title
derived from Spain extends our exclusive rights over the whole territory
in dispute as against Great Britain.
Such being the opinion of the President in regard to the title of the
United States he would not have consented to yield any portion of the
Oregon Territory had he not found himself embarrassed, if not committed',
by the acts of his predecessors. They had uniformly proceeded upon the
principle of compromise in all their negotiations. Indeed the first question presented to him, after entering upon the duties of his office was,
whether he should abruptly terminate the negotiations which had been
commenced and conducted between Mr. Calhoun and Mr. Pakenham on the
principle avowed in the first protocol, not of contending for the whole
territory in dispute, but of treating of the respective claims of the Parties
"with the view to establish a permanent boundary between the two
countries, westward of the Rocky Mountains."
: In view of these facts the President has determined to pursue the
present negotiation to its conclusion upon the principle of compromise in
which it commenced, and to make one more effort to adjust this long-
pending controversy. In this determination he trusts that the British
Government will recognize his sincere and anxious desire to cultivate the
most friendly relations between the two countries, and to manifest to the
world that he is actuated by a spirit of moderation. He has, therefore,
instructed the Undersigned again to propose to the Government of Great
Britain that the Oregon Territory shall be divided between the two
countries by the forty-ninth parallel of north latitude from the Rocky
Mountains to the Pacific Ocean; offering, at the same time, to make free
to Great Britain any port or ports on Vancouver's Island, south of this
parallel, which the British Government may desire. He trusts that
Britain may receive this proposition in the friendly spirit in which it was
dictated, and that it may prove the stable foundation of lasting peace and
harmony between the two countries. The line proposed will carry out the
principle of continuity equally for both parties, by extending the limits
both of ancient Louisiana and Canada to the Pacific, along the same
parallel of latitude which divides them east of the Rocky Mountains, and
it will secure to each a sufficient number of commodious harbours on the
north-west coast of America.
The Undersigned, &c,
(Signed) JAMES BUCHANAN.
M
Inclosure 2 in No. 28.
Mr. Pakenham to Mr. Buchanan.
Washington, July 29, 1845.
NOTWITHSTANDING the prolix discussion which the subject has
already undergone, the Undersigned, &e, feels obliged to place on record
a few observations in reply to the statement marked J. B., which he had
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the honour to receive on the 16th of this month from the hands of the
Secretary of State of the United States, terminating with a proposition
on the part of the United States, for the settlement of the Oregon Question.
In this paper it is stated that " the title of the United States to that
portion of the Oregon Territory between the Valley of the Columbia and
the Russian line in 54° 40' north latitude, is recorded in the Florida
Treaty. Under this Treaty, dated on 22nd February, 1819, Spain ceded
to the United States all her ' rights, claims, and pretensions' to any
territories west of the Rocky Mountains, and north of the 42nd parallel
of latitude. We contend," says the Secretary of State, "that at the date
of this cession, Spain had a good title, as against Great Britain, to the
whole Oregon Territory; and if this be established, the question is then
decided in favour of the United States;" the Convention between Great
Britain and Spain, signed at the Escurial on the 28th of October, 1790,
not w ith standi n g.
"If," says the American Plenipotentiary, "it should appear that
this Treaty was transient in its very nature; that it conferred upon Great
Britain no right but that of merely trading with the Indians, whilst the
country should remain unsettled, and making the necessary establishments
for this purpose; that it did not interfere with the ultimate sovereignty
of Spain over the territory ; and, above all, that it was annulled by the
war between Spain and Great Britain in 1796, and has never since been
renewed by the parties, then the British claim to any portion of this
territory will prove to be destitute of foundation."
The Undersigned will endeavour to show not only that when Spain
concluded with the United States the Treaty of 1819, commonly called
the Florida Treaty, the Convention between the former Power and Great
Britain, in 1790, was considered by the parties to it to be still in force;
but even that if no such Treaty had ever existed, Great Britain would
stand, with reference to a claim to the Oregon Territory, in a position at
least as favourable as the United States.
The Treaty of 1790 is hot appealed to by the British Government, as
the American Plenipotentiary seems to suppose, as their " main reliance"
in the present discussion ; it is appealed to to show that by the Treaty of
1819, by which " Spain ceded to the United States all her rights, claims,
and pretensions to any territories west of the Rocky Mountains, and
north of the 42nd parallel of latitude," the United States acquired no
right-to exclusive dominion over any part of the Oregon Territory.
The Treaty of 1790 embraced, in fact, a variety of objects : it partook,
in some of its stipulations, of the nature of a commercial convention ; in
other respects it must be considered as an acknowledgment of existing
rights, an admission of certain principles of international law, not to be
revoked at the pleasure of either party, or to be set aside by a cessation
of friendly relations between them.
Viewed in the former light its stipulations might have been considered as cancelled, in consequence of the war which subsequently took
place between the Contracting Parties, were it not that by the Treaty concluded at Madrid .on the 28th of August, 1814, it was declared that all the
treaties of commerce which subsisted between the two nations (Great
Britain and Spain) in 1796 were thereby ratified and confirmed.
In the latter point of view the restoration of a state of peace was of
itself sufficient to restore the admission contained in the Convention of
1790 to their full original force and vigour.
There are besides very positive reasons for concluding that Spain did
not consider the stipulations of the Nootka Convention to have been
revoked by the war of 1796 so as to require, in order to be binding on her,
that they should have been expressly revived on the restoration of peace
between the two countries.
Had Spain considered that Convention to have been annulled by the
war, in other words, had she considered herself restored to her former
position and pretensions, with respect to exclusive dominion over the
unoccupied parts of the North American Continent, it is not to be imagined
that she would have passively submitted to see the contending claims of
Great Britain and the United States to a portion of that territory made 41
the subject of negotiation and formal diplomatic transaction between those
two nations. It is, on the contrary, from her silence with respect to the
continued occupation by the British of their settlements in the Columbia
Territory subsequently to the Convention of 1814, and when as yet there
had been no transfer of her rights, claims, or pretensions, to the United
States, and from her silence also while important negotiations respecting
the Columbia Territory, incompatible altogether with her ancient claim
to exclusive dominion, were in progress between Great Britain and the
United States, fairly to be inferred, that Spain considered the stipulations
of the Nootka Convention, and the principles therein laid down, to be still
in force.
But the American Plenipotentiary goes so far as to say that the
British Government itself had no idea in 1818 that the Nootka Sound
Convention was then in force because no reference was made to it on the
part of England during the negotiation of that year on the Oregon
Question.
In reply to this argument it will be sufficient for the Undersigned
to remind the American Plenipotentiary that in the year 1818 no claim
as derived from Spain was or could be put forth by the United States,
seeing that it was not until the following year, the year 1819, that the
Treaty was concluded by which Spain transferred to the United States
her rights, claims, and pretensions to any territories west of the Rocky
Mountains, and north of the 42nd parallel of latitude. Hence it is obvious
that in the year 1818 no occasion had arisen for appealing to the qualified
nature of the rights, claims, and pretensions so transferred,—a qualification
imposed, or at least recognised by the Convention of Nootka.
" The title of the United States to the Valley of the Columbia River,"
the American Plenipotentiary observes, " is older than the Florida Treaty
of February, 1819, 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."
The Undersigned must be permitted respectfully to inquire upon
what principle, unless it be upon the principle which forms the foundation
of the Nootka Convention," could the United States have acquired a title
to any part of the Oregon Territory, previously to the Treaty of 1819, and
independently of its provisions ?
By discovery, exploration, settlement, will be the answer.
But, says the American Plenipotentiary, in another part of his statement, the rights of Spain to the west coast of America, as far north as
the 61st degree of latitude, were so complete as never to have been
seriously questioned by any European nation. They I had been maintained
by Spain with the most vigilant jealousy ever since the discovery of the
American Continent, and had been acquiesced in by all European Powers.
They had been admitted even by Russia, and that too under a Sovereign
peculiarly tenacious of the territorial rights of her empire, who, when
complaints had been made to the Court of Russia against Russian subjects
for violating the Spanish territory on the north-west coast of America
did not hesitate to assure the King of Spain that she was extremely sorry
that the repeated orders issued to prevent the subjects of Russia from
violating in the smallest degree the territory belonging to another Power
should have been disobeyed."
In what did this alleged violation of territory consist ? Assuredly in
some attempted acts of discovery, exploration, or settlement.
At that time Russia stood in precisely the same position with reference to the exclusive rights of Spain as the United States, and any acts in
contravention of those rights, whether emanating from Russia or from
the United States, would necessarily be judged by one and the same rule.
How then can it be pretended that acts which in the case of Russia were
considered as criminal violation of the Spanish territory, should, in the
case of citizens of the United States, be appealed to as constituting a
valid title to the territory affected by them ? And yet from this inconsistency the American Plenipotentiary cannot escape if he persists in
considering the American title to have  been perfected by discovery,
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exploration, and settlement, where as yet Spain had made no transfer of
her rights, if, to use his own words, " that title is older than the Florida
Treaty, and exists independently of its provisions."
According to the doctrine of exclusive dominion the exploration of
Lewis and Clarke, and the establishments founded at the mouth of the
Columbia by American citizens, must be condemned as encroachments on
the territorial rights of Spain.
According to the opposite principle by which discovery, exploration,
and settlement, are considered as giving a valid claim to territory, those
very acts are referred to in the course of the same paper as constituting a
complete title in favour of the United States.
Besides, how shall we reconcile this high estimation of theterritorial
rights of Spain, considered independently of the Nootka Sound Convention,
with the course observed by the United States in their diplomatic transactions with Great Britain previously to the conclusion of the Florida
Treaty ? The claim advanced for the restitution of Fort George under
the First Article of the Treaty of Ghent, the arrangement concluded for
the joint occupation of the Oregon Territory by Great Britain and the
United States, and, above all, the proposal actually made on the part of
the United States for a partition of the Oregon Territory, all which transactions took place in the year 1818, when as yet Spain had made no
transfer or cession of her rights, appear to be as little reconcileable with
any regard for those rights, when still vested in Spain, as the claim
founded on discovery, exploration, and settlement accomplished previously
to the transfer of those rights to the United States.
Supposing the arrangement proposed in the year 1818, or any other
arrangement for the partition of the Oregon Territory, to have been concluded in those days between Great Britain and this country, what would
in that case have become of the exclusive rights of Spain ?
There would have been no refuge for the United States but in an
appeal to the principles of the Nootka Convention.
To deny then the validity of the Nootka Convention is to proclaim
the illegality of any title founded on discovery, exploration, or settlement,
previous to the conclusion of the Florida Treaty.
To appeal to the Florida Treaty as conveying to the United States
any exclusive rights is to attach a character of encroachment and of
violation of the rights of Spain to every act to which the United States
appealed in the negotiation of 1818, as giving them a claim to territory
on the north-west coast.
These conclusions appear to the Undersigned to be irresistible.
The United States can found no claim on discovery, exploration, and
settlement, effected previously to the Florida Treaty, without admitting
the principles of the Nootka Convention, and the consequent validity of
the parallel claims of Great Britain founded on like acts ; nor can they
appeal to any exclusive right as acquired by the Florida Treaty, without
upsetting all claims adduced in their own proper right, by reason of
discovery, exploration, and settlement, antecedent to that arrangement.
The Undersigned trusts he has now shown that the Convention of
1790 (the Nootka Sound Convention) has continued in full and complete
force up to the present moment, by reason, in the first place, of the commercial character of some of its provisions, as such expressly renewed by
the Convention of August, 1814, between Great Britain and Spain.
By reason, in the next place, of the acquiescence of Spain in various
transactions to which it is not to be supposed that that Power would have
assented, had she not felt bound by the provisions of the Convention in
question.
And, thirdly, by reason of the repeated acts of the Government of the
United States previous to the conclusion of the Florida Treaty, manifesting adherence to the principles of the Nootka Convention, or at least
dissent from the exclusive pretensions of Spain.
Having thus replied, and he hopes satisfactorily, to.the observations
of the American Plenipotentiary with respect to the effect of the Nodfcjka
Sjound Convention;, and the Florida Treaty, as bearing upon the subject
of the present discussion, the Undersigned must endeavour toshoyw/that m
even if ttie Nootka Sound Convention had never existed, the position of
Great Britain in regard to her claim, whether to the whole or to any
particular part of the'Oregon Territory, is at least as good as that of the
fecated States.
This branch of the subject must be considered, first, with reference to
principle ; to the right of either party, Great Britain or the United States,
to explore or make settlements in the Oregon Territory, without violation
of the rights of Spain: and next, supposing the first point to be decided
affirmatively, with reference to the relative value and importance of the
acts of discovery, exploration, and settlement effected by each.
As relates to the question of principle, the Undersigned thinks he can
furnish no better argument than that contained in the following words,
which he has already once quoted from the statement of the American
Plenipotentiary :—" The title of the United States to the Valley of the
Columbia is older than the Treaty of Florida of February, 1819, under
which the United States acquired all the rights of Spain to the northwest coast of America, and exists independently of its provisions." And
again, " the title of the United States to the entire region drained by the
Columbia River and its branches was perfect and complete before the
date of the Treaties of joint occupation of October, 1818, and August,
1827."
The title thus referred to must be that resting on discovery, exploration, and settlement.
If this title then is good, or rather, was good, as against the exclusive
pretensions of Spain previously to the conclusion of the Florida Treaty,
so must the claims of Great Britain, resting on the same grounds, be
good also.
Thus, then, it seems manifest, that, with or without the aid of the
Nootka Sound Convention, the claims of Great Britain resting on discovery, exploration, and settlement, are in point of principle equally valid
with those of the United States.
Let us now see how the comparison will stand when tried by the
relative value, importance, and authenticity of each.
Rejecting previous discoveries north of the 43rd parallel of latitude
^as not sufficiently authenticated, it will be seen on the side of Great
Britain, that in 1778 Captain Cook discovered Cape Flattery, the southern
^entrance of the Straits of Fuca; Cook must also be considered the discoverer of Nootka Sound, in consequence of the want of authenticity in the
alleged previous discovery of that port by Perez.
In   1787,  Captain  Berkeley,  a British  subject,  in  a vessel under
Austrian colours, discovered the Straits of Fuca; in the same year Captain Duncan, in the ship " Princess Royal," entered the straits, and traded
at the village of Classet.
In 1788, Meares, a British subject, formed the establishment at
Nootka, which gave rise to the memorable discussion with the Spanish
Government, ending in the recognition by that Power of the right of
Great Britain to form settlements in the unoccupied parts of the northwest portion of the American Continent, and in an engagement on the
part of Spain to reinstate Meares in the possession from which he had
been ejected by the Spanish commander.
In 1792, Vancouver, who had been sent from England to witness the
fulfilment of the above-mentioned engagement, and to effect a survey of
the ^north-west coast, departing from Nootka Sound, entered the Straits
fiaffspuca, and after an accurate survey of the coast and inlets on both
sides, discovered a passage northwards into the Pacific, by which he
returned to Nootka, having thus circumnavigated the island which now
ibeairs 'his name; and Jrere we have, as far as  relates to Vancouver's
Island, as complete a case of discovery, exploration, and settlement, as
«an well be presented, giving to Great Britain, in any arrangement that
may be made with regard to the territory in dispute, the strongest possible
claim to the exclusive possession of that island.
While Vancouver was prosecuting discovery and exploration by sea,
Sir Alexander Mackenzie, a partner in the North-West Company, crossed
the Rocky Mountains, discovered the head waters of the river since called
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Frazer's River, and, following for some time the course of that river,
effected a passage to the sea, being the first civilized man who traversed
the continent of America from sea to sea in these latitudes. On the
return of Mackenzie to Canada the North-West Company established
trading posts in the country to the westward of the Rocky Mountains.
In 1806 and 1811, respectively, the same company established posts
on the Tacoutche Tesse and the Columbia.
In the year 1811, Thompson, the astronomer of the North-West
Company, discovered the northern head waters of the Columbia, and
following its course till joined by the rivers previously discovered by
Lewis and Clarke he continued his journey to the Pacific.
From that time until the year 1818, when the arrangement for the
joint occupancy of the territory was concluded, the North-West Company
continued to extend their operations throughout the Oregon Territory,
and to occupy, it may be said, as far as occupation can be effected in
regions so inaccessible and destitute of resources.
While all this was passing the following events occurred, which
constitute the American claim in their own proper right.
In 1792, Gray entered the mouth of the Columbia River. In 1805,
Lewis and Clarke effected a passage across the Rocky Mountains, and
discovering a branch of the Columbia River, followed it until they reached
the Ocean.
In 1811, the trading post or settlement of Astoria was established at
the mouth of the Columbia on the southern side of that river.
This post or settlement passed, during the last war, into British
hands, by the voluntary act of the persons in charge of it, a fact most
clearly established; it was restored to the United States in 1818, with
certain well-authenticated reservations; but it was never actually occupied
by American citizens, having from the moment of the original transfer or
sale continued to be occupied by British subjects.
These are the acts of discovery, exploration, and settlement referred
to by the United States, as giving them a claim to the Valley of the
Columbia in their own proper right.
The British Government are disposed to view them in the most
liberal sense, and to give to them the utmost value to which they can in
fairness be entitled ; but there are circumstances attending each and all
of them, which must, in the opinion of any impartial investigator of the
subject, take from them a great deal of the effect which the American
negotiators assign to them, as giving to this country a claim to the entire
region drained by the Columbia and its branches.
In the first place, as relates to the discovery of Gray, it must be
remarked, that he was a private navigator, sailing principally for the
purposes of trade; which fact establishes a wide difference, in a national
point of view, between the discoveries accomplished by him, and those
effected by Cook and Vancouver, who sailed in ships of the Royal Navy
of Great Britain, and who were sent to the north-west coast for the
express purpose of exploration and discovery.
In the next place, it is a circumstance not to be lost sight of that it
was not for several years followed up by any act which could give it value
in a national point of view: it was not in truth made known to the world,
either by the discoverer himself, or by his Government. So recently as
the year 1826, the American Plenipotentiaries in London remarked with
great correctness, in one of their reports, that, " respecting the mouth of
the Columbia River, we know nothing of Gray's discoveries but through
British accounts."
In the next place, the connection of Gray's discovery with that of
Lewis and Clarke is interrupted by the intervening exploration of
Lieutenant Broughton of the British surveying ship " Chatham."
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 principal
branch of the Columbia River, which lie far to the north of the parts of
the country traversed or explored by them.    Thompson, of the British
|
I
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North-West Company, was the first civilized person who navigated the
northern, in reality, the main branch of the Columbia, 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 already been 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.
As to the settlement, the qualified nature of the rights devolved to
the United States by virtue of the restitution of Fort Astoria has already
been pointed out.
It will then be seen, the Undersigned confidently believes, that on
the ground of discovery, exploration, and settlement, Great Britain has
nothing to fear from a comparison of her claims to the Oregon Territory,
taken as a whole, with those of the United States. That, reduced to the
valley drained by the Columbia, the facts on which the United States rest
their case are far from being of that complete and exclusive character
which would justify a claim to the whole Valley of the Columbia; and
that, especially as relates to Vancouver's Island, taken by itself, the
preferable claim of Great Britain, in every point of view, seems to have
been clearly demonstrated.
After this exposition of the views entertained by the British Government respecting the relative value and importance of the British and
American claims the American Plenipotentiary will not be surprised to
hear that the Undersigned does not feel at liberty to accept the proposal
offered by the American Plenipotentiary for the settlement of the question.
This proposal, in fact, offers less than that tendered by the American
Plenipotentiaries in the negotiation of 1826, and declined by the British
•Government.
On that occasion it was proposed that the navigation of the Columbia
should be made free to both parties. On this point nothing is said in the
proposal to which the Undersigned has now the honour to reply. While
with respect to the proposed freedom of the ports on Vancouver's Island,
south of latitude 49°, the facts which have been appealed to in this paper,
as giving to Great Britain the strongest claim to the possession of the
whole island, would seem to deprive such proposal of any value.
The Undersigned therefore trusts that the American Plenipotentiary
will be prepared to offer some further proposal for the settlement of the
Oregon Question more consistent with fairness and equity, and with the
reasonable expectations of the British Government, as defined in the
statement marked D*, which the Undersigned had the honour to pre*
sent to the American Plenipotentiary at the early part of the present
negotiation.
The Undersigned, &c,
(Signed) R. PAKENHAM.
No. 29.
Mr. Pakenham to the Earl of Aberdeen.—(Received September 29.)
(Extract.) Washington, September 13, 1845.
I FEEL great concern in laying before your Lordship the inclosed
copy of a communication which I have received from the United States'
Secretary of State, containing a long argument in reply to the statement
last presented by me on the subject of the Oregon Boundary (a copy of
which accompanied my despatch of 29th July), and ending, as your
Lordship will perceive, by withdrawing the proposal lately made by
Mr. Buchanan for the settlement of that question.
HM
ill
* See Mr. Pakenham's Statement, &c, p. 19. Inclosure in No. 29.
Mr. Buchanan to Mr. Pakenham.
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J; B. 2. Department of State,
Washington, August 30, 1845.
THE Undersigned, Secretary of State to the United States, deems it
his duty to make some observations in reply to the statement of Her
Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary,
marked R. P. and dated 29th July, 1845.
Preliminary to the discussion, it is necessary to fix our attention upon
the precise question under consideration, in the present stage of the
negotiation. This question simply is, were the titles of Spain and the
United States, when united by the Florida Treaty on the 22nd of
February, 1819, good as against Great Britain, to the Oregon Territory,
as far north as the Russian line in the latitude of 54° 40' ? If they were,
it will be admitted that this whole territory now belongs to the United
States.
The Undersigned again remarks that it is not his purpose to repeat
the argument by which his predecessor, Mr. Calhoun, has demonstrated
the American title to " the entire region drained by the Columbia and its
branches."    He will not thus impair its force.
It is contended on the part of Great Britain, that the United States
acquired and hold the Spanish title, subject to the terms and conditions of
the Nootka Sound Convention, concluded between Great Britain and
Spain at the Escurial on the 28th October 1790.
In opposition to the argument of the Undersigned, contained in his
statement marked J. B., maintaining that this Convention had been
annulled by the war between Spain and Great Britain in 1796, and has
never since been revived by the parties, the British Plenipotentiary, in his
statement marked R. P., has taken the following positions:—
1st. " That when Spain concluded with the United States the Treaty
of 1819, commonly called the Florida Treaty, the Convention concluded
between the former Power and Great Britain in 1790, was considered by
the parties to it to be still in force."
And 2nd. " But that even if no such treaty had ever existed, Great
Britain would stand, with reference to a claim to the Oregon Territory, in
a position at least as favourable as the United States."
The Undersigned will follow, step by step, the argument of the British
Plenipotentiary in support of these propositions.
The British Plenipotentiary states, " that the Treaty of 1790 is not
appealed to by the British Government, as the American Plenipotentiary
seems to suppose, as their main reliance in the present discussion ;" but to
Show that by the Florida Treaty of 1819, " the United States acquired no
right to exclusive dominion over any part of the Oregon Territory."
The Undersigned had believed that ever since 1826, the Nootka Convention has been regarded by the British Government as their main, if
not their only, reliance. The very nature and peculiarity of their claim
identified it with the construction which they have imposed upon this
Convention, and necessarily exclude every other basis of title. What but
to accord with this construction could have caused -Messrs. Huskisson and
Addington, the British Commissioners, in specifying their title on the 16th
December 1826, to declare, that " Great Britain claims no exclusive sovereignty over any portion of that territory? Her present claim, not in
respect to any part, but to the whole, is limited to a right ^of joint aces®*:
pancy, in common with other Stetes, leseving the right of delusive dominion in abeyance." And again, "By that Convention (of Nootka) it was
agreed that all parts of the North-Western Coast of America, not already
occupied at that time by either of the Contracting Parties, should thenceforward be equally open to the subjects of both for all purposes of commerce and settlement, the sovereignty remaining in. abeyance." But on
this subject we are not left to mere inferences, however clear. The British
Commissioners, in their statement from which I have just quoted, have BMSB
47
virtually abandoned any other title which Great Britain may have previously asserted to the territory in dispute, and expressly declare, " that
whatever that title may have been, however, either on the part of Great
Britain, or on the part of Spain, prior to the Convention of 1790, it was
thenceforward no longer to be traced in vague narratives of discoveries,
several of them admitted to be apocryphal, but in the text and stipw»
lotions of that Convention itself." And again, in summing up their
whole case they say, " admitting that the United States have acquired all
the rights which Spain possessed up to the Treaty of Florida, either in
yirtue of discovery, or, as is pretended, in right of Louisiana, Great
Britain maintains that the nature and extent of these rights, as well as of
the rights of Great Britain, are fixed and defined by the Convention of
Nootka," &c.
The Undersigned, after a careful examination, can discover nothing
in the note of the present British; Plenipotentiary to Mr. Calhoun of the
12th September last, to impair the force of these declarations and admissions of his predecessors. On the contrary, its general tone is in perfect
accordance with them.
Whatever may be the consequences, then, whether for good or for
evil, whether to strengthen or to destroy the British claim, it is now too
late for the. British Government to vary their position. If the Nootka
Convention confers upon them no such rights as they claim, they cannot
at this late hour go behind its provisions, and set up claims which, in
1826, they admitted had been " merged in the text and stipulations of
that Convention itself."
The Undersigned regrets that the British Plenipotentiary has not
noticed his exposition of the true construction of the Nootka Convention.
He had endeavoured, and, he believes, successfully, to prove that this
Treaty was transient in its very nature; that it conferred upon Great
Britain no right but that of merely trading with the Indians whilst the
country should remain unsettled, and making the necessary establishments for this purpose; and that it did not interfere with the ultimate
sovereignty of Spain over the territory. The British Plenipotentiary has
not attempted to resist these conclusions. If they be fair and legitimate,
then it would not avail Great Britain, even if she could prove the Nootka
Convention to be still in force. On the contrary, this Convention, if the
construction placed upon it by the Undersigned be correct, contains a
clear virtual admission on the part of Great: Britain, that Spain held the
eventual right of sovereignty over the whole disputed territory, and consequently that it now belongs to the United States. The value of this
admission made in 1790 is the same, whether or not the Convention has
continued to exist until the present day. But he is willing to leave this
point on the uncontroverted argument contained in his former statement.
But is the Nootka Sound Convention still in force ? The British
Plenipotentiary does not contest the clear general principle of public law,
" that war terminates all subsisting treaties between the belligerent
Powers." He contends, however, in the first place, that this Convention
is partly commercial, and that so far as it partakes of this character, it
-q&as revived by the Treaty concluded at Madrid on the 28th August 1814,
\Khjch declares " that, all the treaties of commerce which subsisted between
the two parties (Great Britain and Spain) in 1796, were thereby ratified
and confirmed; and, secondly, that in other respects, it must be considered as an acknowledgment of subsisting rights, an admission of
certain principles of international law," not to be revoked by war.
In regard to the first proposition, the Undersigned is satisfied to leave
the question to rest upon his former argument, as the British Plenipotentiary has contented himself with merely asserting the fact, that the
commercial portion of the Nootka Sound Convention was revived by the
Treaty of 1814, without even specifying what he considers to be that portion of the Convention. If the Undersigned had desired to strengthen
his former position, he might have repeated with great effect the argument
contained in the note of Lord Aberdeen to the Duke of Sotomayor dated
30th June, 1845, in which his Lordship clearly established that all the
treaties of commerce subsisting between Great Britain and Spain.previous
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to 1796, were confined to the trade with Spain alone, and did not embrace
her colonies and remote possessions.
The second proposition of the British Plenipotentiary deserves greater
attention. Does the Nootka Sound Convention belong to that class of
treaties containing an acknowledgment of subsisting rights—an admission
of certain principles of international law—not to be abrogated by war?
Had Spain by this Convention acknowledged the right of all nations to
make discoveries, plant settlements, and establish colonies on the North-
West Coast of America, bringing with them their sovereign jurisdiction,
there would then have been much force in the argument: but such an admission never was made, and never was intended to be made by Spain. 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 in their
nature 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. The law of nations recognizes no such
principle in regard to unappropriated territory as those embraced in this
Treaty; and the British Plenipotentiary must fail in the attempt to prove
that it contains " an admission of certain principles of international law,"
which will survive the shock of war.
But the British Plenipotentiary contends that, from the silence of
Spain during the negotiations of 1818 between Great Britain and the
United States, respecting the Oregon Territory, as well as from her silence
with respect to the continued occupation by the British of their settlements in the Columbia Territory subsequently to the Convention of 1814,
| it may fairly be inferred that Spain considered the stipulations of the
Nootka Convention, and the principles therein laid down, to be still in
force."
The Undersigned cannot imagine a case where the obligations of a
treaty, once extinguished by war, can be revived without a positive agreement to this effect between the parties. Even if both parties, after the
Conclusion of peace, should perform positive and unequivocal acts, in
accordance with its provisions, these must be construed as merely voluntary, to be discontinued by either at pleasure. But in the present case, it
is not even pretended that Spain performed any act in accordance with
the Convention of Nootka Sound, after her Treaty with Great Britain of
1814.    Her mere silence is relied upon to revive that Convention.
The Undersigned asserts confidently, that neither by public nor private law, will the mere silence of one party, whilst another is encroaching
upon his rights, even if he had knowledge of this encroachment, deprive
bim of these rights. If this principle be correct as applied to individuals,
it holds with much greater force in regard to nations. The feeble may
not be in a condition to complain against the powerful; and thus the
encroachment of the strong would convert itself into a perfect title against
the weak. 49
In the present case, it was scarcely possible for Spain even to have
learned the pendency of negotiations between the United States and
Great Britain in relation to the North-West Coast of America, before she
had ceded all her rights on that coast to the former by the Florida Treaty
of 22nd February 1819. The Convention of joint occupancy between the
United States and Great Britain, was not signed at London until the 20th
October 1818, but four months previous to the date of the Florida Treaty;
and the ratifications were not exchanged, and the Convention published
until the 30th of January 1819.
Besides, the negotiations which terminated in the Florida Treaty,
had been commenced' as early as December 1815, and were in full progress
On the 20th October 1818, when the Convention was signed between Great
Britain and the United States. It does not appear, therefore, that Spain
had any knowledge of the existence of these negotiations; and even if this
were otherwise, she would have had no motive to complain, as she was in
the very act of transferring all her rights to the United States.
But, says the British Plenipotentiary, Spain looked in silence on the
. continued occupation by the British of their settlements in the Columbia
Territory subsequently to the Convention of 1814 ; and therefore she considered the Nootka Sound Convention to be still in force. The period of
this silence, so far as it could affect Spain, commenced on the 28th day of
August, 1814, the date of the Additional Articles of the Treaty of Madrid,
and terminated on the 22nd February, 1819, the date of the Florida
Treaty. Is there the least reason, from this silence, to infer an admission
by Spain of the continued existence of the Nootka Sound Convention ?
In the first place, this Convention was entirely confined | to 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." It did not extend to the interior. At the date of this
Convention, no person dreamed that British traders from Canada or
Hudson's Bay would cross the Rocky Mountains, and encroach on the
rights of Spain from that quarter. Great Britain had never made any
settlement on the North-Western Coast of America from the date of the
Nootka Sound Convention until the 22nd February, 1819; nor, so far as
the Undersigned is informed, has she done so down to the present
moment. Spain could not, therefore, have complained of any such settlement. In regard to the encroachments which had been made from the
interior by the North-West Company, neither Spain nor the rest of the
world had any specific knowledge of their existence. But even if the
British Plenipotentiary had brought such knowledge home to her, which
he has not attempted, she had been exhausted by one long and bloody
war, and was then engaged in another with her colonies, and was besides
negotiating for a transfer of all her rights on the North-Western Coast of
America to the United States. Surely these were sufficient reasons for
her silence, without inferring from it that she acquiesced in the continued
existence of the Nootka Convention. Jf Spain had entertained the least
idea that the Nootka Convention was still in force, her good faith and her
national honour would have caused her to communicate this fact to the
United States before she had ceded this territory to them for an ample
consideration: not the least intimation of the kind was ever communicated.
Like Great Britain in 1818, Spain in 1819 had no idea that the
Nootka Sound Convention was still in force. It had then passed away
and was forgotten.
The British Plenipotentiary alleges that the reason why Great Britain
did not assert the existence of the Nootka Convention during the negotiations between the two Governments in 1818, was, that no occasion had
arisen for its interposition, the American Government not having then
acquired the title of Spain. It is very true that the United States had not
then acquired the Spanish title; but is it possible to imagine that throughout the whole negotiation, the British Commissioners, had they supposed
this Convention to have been in existence, would have remained entirely
silent in regard to a treaty which, as Great Britain now alleges, gave
her equal and co-ordinate rights with Spain to the whole North-West
H
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Coast of America ? At that period Great Britain confined her claims to
those arising from discovery and purchase from the Indians. How vastly
she could have strengthened these claims, had she then supposed the
Nootka Convention to be in force, with her present construction of its
provisions. Even in 1824, it was first introduced into the negotiation,
not by her Commissioners, but by Mr. Rush, the American Plenipotentiary.
But the British Plenipotentiary argues that the United States " can
found no claim on discovery, exploration, and settlement, effected previously to the Florida Treaty, without admitting the principles of the
Nootka Convention;" " nor can they appeal to any exclusive right as
acquired by the Florida Treaty, without upsetting all claims adduced in
their own proper right, by reason of discovery, exploration, and settlement antecedent to that arrangement."
This is a most ingenious method of making two distinct and independent titles held by the same nation, worse than one; of arraying
them against each other, and thus destroying the validity of both. Does
he forget that the United States own both these titles, and can wield them
either separately or conjointly against the claim of Great Britain at their
pleasure ? From the course of his remarks it might be supposed that
Great Britain, and not the United States, had acquired the Spanish title
under the Florida Treaty. But Great Britain is a third party, an entire
stranger to both these titles, and has no right whatever to marshal the one
against the other.
By what authority can Great Britain interpose in this manner ? Was
it ever imagined in any court of justice, that the acquisition of a new title
destroyed the old one, and vice versd, that the purchase of the old title
destroyed the new one ? In a question of mere private right, it would be
considered absurd if a stranger to both titles should say to the party
who had made a settlement, you shall not avail yourself of your possession,
because this was taken in violation of another outstanding title; and
although I must admit that you have also acquired this outstanding title,
yet even this shall avail you nothing; because having taken possession
previously to your purchase, you thereby evinced that you did not regard
such title as valid. And yet such is the mode by which the British
Plenipotentiary has attempted to destroy both the American and Spanish
title. On the contrary, in the case mentioned, the possession and the
outstanding title being united in the same individual, these conjoined
would be as perfect as if both had been vested in him from the beginning.
The Undersigned, while
strongly
asserting
both  these titles, and
believing each of them separately to be good as against Great Britain,
has studiously avoided instituting any comparison between them. But
admitting, for the sake of argument merely, that the discovery by Captain
Gray of the mouth of the Columbia, its exploration by Lewis and Clarke,
and the settlement upon its banks at Astoria, were encroachments on Spain,
she, and she alone, had a right to complain; Great Britain was a third
party, and as such had no right to interfere in the question between Spain
and the United States. But Spain, instead of complaining of these acts
as encroachments, on the 25th February 1819, by the Florida Treaty,
transferred her whole title to the United States. From that moment all
possible conflict between the two titles was ended, both being united in
the same party. Two titles which might have conflicted theretofore,
were thus blended together. The title now vested in the United States
is just as strong as though every act of discovery, exploration, and settlement, on the part of both Powers, had been performed by Spain alone,
before she had transferred all her rights to the United States. The two
Powers are one in this respect; the two titles are one, and, as the Undersigned will show hereafter, they serve to confirm and strengthen each
other. If Great Britain, instead of the United States, had acquired the
title of Spain, she might have contended that these acts of the United
States were encroachments; but standing in the attitude of a stranger to
both titles, she has no right to interfere in the matter.
The Undersigned deems it unnecessary to pursue this branch of the
subject further than to state, that the United States, before they had
HjliUltWin**fr.11—4*g^.wJM**i-* *vnx 51
acquired the title of Spain, always treated that title with respect. In the'
negotiation of 1818 the American Plenipotentiaries did not assert that the
United States had a perfect right to that country; but insisted that their
claim was at least good against Great Britain; and the Convention of
October 20 1818, unlike that of Nootka Sound, " reserved the claims of
any other Power or State to any part of the said country." This reservation could have been intended for Spain alone. But ever since the
United States acquired the Spanish title, they have always asserted and
maintained their right, in the strongest terms, up to the Russian line, even
whilst offering, for the sake of harmony and peace, to divide the territory
in dispute bythe 49th parallel of latitude.
The British Plenipotentiary, then, has entirely failed to sustain his position that the United States can found no claim on discovery, exploration,:
and settlement, without admitting the principle of the Nootka Convention.
That Convention died on the commencement of the war between Spain
and England in 1796, and has never since been revived.
The British Plenipotentiary endeavours to prove that " even if the
Nootka Sound Convention had never existed, the position of Great Britain
in regard to her claim, whether to the whole or to any particular portion
of the Oregon Territory, is at least as good as that of the United States."
In order to establish this position, he must show that the British claim
is equal in validity to the titles both of Spain and the United States.
These can never now be separated. They are one and the same. Different and diverging as they may have been before the Florida Treaty, they,
are now blended together and identified. The separate discoveries, explorations, and settlements of the two Powers previous to that date, must
now be considered as if they had all been made by the United States
alone. Under this palpable view of the subject, the Undersigned was
surprised to find that, in the comparison and contrast instituted by the
British Plenipotentiary between the claim of Great Britain and that of
the United States, he had entirely omitted to refer to the discoveries,
explorations, and settlements made by Spain. The Undersigned will
endeavour to supply the omission.
But before he proceeds to the main argument on this point, he feels
himself constrained to express his surprise that the British Plenipotentiary
should again have invoked, in support of the British title, the inconsistency between the Spanish and American branches, of the title of the
United States; the Undersigned cannot forbear to congratulate himself
Upon the fact that a gentleman of Mr. Pakenham's acknowledged ability
has been reduced to the necessity of relying chiefly upon such a support
for sustaining the British pretensions. Stated in brief, the argument is
this:—the American title is not good against Great Britain, because inconsistent with that of Spain; and the Spanish title is not good against Great
Britain, because inconsistent with that of the United States. The Undersigned had expected something far different from such an argument in a
circle. He had anticipated that the British Plenipotentiary would have
attempted to prove that Spain had no right to the North-Western Coast
of America; that it was vacant and unappropriated, and hence, under
the law of nations, was open to discovery, exploration and settlement by
all nations. But no such thing. On this vital point of his case
he rests his argument solely on the declaration made by the Undersigned,
that the title of the United States to the Valley of the Columbia was perfect and complete before the Treaties of joint occupation of October
1818, and August 1827, and before the date of the Florida Treaty in 1819.
But the British Plenipotentiary ought to recollect that this title was
asserted to be complete, not against Spain, but against Great Britain;
that the argument was conducted not against a Spanish, but a British
Plenipotentiary; and that the United States, and not Great Britain, represent the Spanish title. And further, that the statement from which he
extracts these declarations, was almost exclusively devoted to prove, in the
language quoted by the British Plenipotentiary himself, " that Spain had
a good title, as against Great Britain, to the whole of the Oregon Territory." The Undersigned has never, as he before observed, instituted any
comparison between the American and the Spanish title. Holding both,
-,w= H 2
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having a perfect right to rely upon both, whether jointly or separately, he
has strongly asserted each of them in their turn, fully persuaded that
either the one or the other is good against Great Britain, and that no
human ingenuity can make the Spanish title, now vested in the United
States, worse than it would have been had it remained in the hands of
Spain.
Briefly to illustrate and enforce this title, shall be the remaining task
of the Undersigned. And in the first place he cannot but commend the
frankness and candour of the British Plenipotentiary in departing from
the course of his predecessors, and rejecting all discoveries previous to
those of Captain Cook, in the year 1778, as foundations of. British title-
Commencing with discovery at a period so late, the Spanish title, on the
score of antiquity, presents a strong contrast to that of Great Britain.
TMe Undersigned has stated, as an historical and striking fact which
must have an important bearing against the claim of Great Britain, that
this Convention (the Nootka), which was dictated by her to Spain, contains no provision impairing the ultimate sovereignty which that Power,
had asserted for nearly three centuries over the whole western side of
North America as far north as the 61st degree of latitude, and which had
never been seriously questioned by any European nation. This had been
maintained by Spain with the most vigilant jealousy ever since the discovery of the American Continent, and had been acquiesced in by all European Governments. It had been admitted, even beyond .the latitude of
54° 40' north, by Russia, then the only Power having claims which could
come in collision with Spain, and that too under a Sovereign peculiarly
tenacious of the territorial rights of her empire. These historical facts
had not been, as they could not be, controverted by the British Plenipotentiary, although they were brought under his particular observation,
and were even quoted by him with approbation, for the purpose of showing
the"'inconsistency of the several titles held by the United States. In the
language of Count Fernan de Nunez, the Spanish Ambassador at Paris,
to M. de Montmorin, the^ecretary of the Foreign Department of France,
under date of 16th June 1790, " By the treaties, demarcation, takings of
possession, and the most decided, acts of sovereignty exercised by the
Spaniards in these stations, from the reign of Charles II, and authorized by
that Monarch in 1792, the original vouchers for which shall be brought
forward in the course of the negotiation, all the coast to the north of the
Western America on the side of the South Sea, as far as beyond what is
called Prince William's Sound, which is in the 61st degree, is acknowledged to belong exclusively to Spain."
Compared with this ancient claim of Spain, acquiesced in by all
European nations for centuries, the claim of Great Britain, founded on
discoveries commenced at so late a period as the year 1778, must make an
unfavourable first impression.
Spain considered the North-Western Coast of America as exclusively
her own. She did not send out expeditions to explore that coast for the
purpose of rendering her title more valid. When it suited her own convenience, or promoted her own interest, she fitted out such expeditions of
discovery, to ascertain the character and extent of her own territory.
And yet her discoveries along that coast are far earlier than those of the
British.
That Juan de Fuca, a Greek in the service of Spain, in 1592, discovered and sailed through the strait now bearing its name, from its
southern to its northern extremity, and thence returned through the same
passage, no longer admits of reasonable doubt. An account of this
voyage was published in London in 1625, in a work called " The Pilgrims"
by Samuel Purchas. This account was received from the lips of Fuca
himself at Venice in April 1596, by Michael Lock, a highly respectable
English merchant.
During a long period this voyage was deemed fabulous, because subsequent navigators had in vain attempted to find these straits. Finally,
after they had been found, it was discovered that the description of De
Fuca corresponded so accurately with their geography and the facts
presented by nature upon the ground, it was no longer possible to consider
Era*m m vnn m*r mm   " 53
his narrative as fabulous. It is true that the opening of the straits.upon
the south lies between the 48th and 49th parallels of latitude, and not
between the 47 and 48th parallels, as he had supposed ; but this mistake
maybe easily explained by the inaccuracy so common throughout the
16th century, in ascertaining the latitude of places in newly-discovered
countries.
It is also true that De Fuca, after passing through the straits, supposed he had reached the Atlantic, and had discovered the passage, so
long and so anxiously sought after, between the two oceans; but from the
total ignorance and misapprehension which prevailed at that early day of
the geography of this portion of North America, it was natural for him
to believe that he had made this important discovery.
Justice has at length been done to his memory; and these straits
which he discovered will in all future time bear his name. Thus the merit
of the discovery of the Straits of Fuca belongs to Spain, and this nearly
two centuries before they had been entered by Captain Berkeley, under
the Austrian flag.
It is unnecessary to detail the discoveries of the Spaniards, as they
regularly advanced to the north from their settlements on the western
coasts of North America, until we reach the voyage of Captain Juan
Perez in 1774. That navigator was commissioned by the Vice-Roy of
Mexico to proceed, in the corvette " Santiago," to the 60th degree of north
latitude, and from that point to examine the coast down to Mexico. He
sailed from San Bias on the 25th January 1774. In the performance of
this commission, he landed first on the north-west coast of Queen Charlotte's Island, near the 54th degree of north latitude, and thence proceeded
south along the shore of that island and of the great Island of Quadra
and Vancouver, and then along the coasts of the continent, until he
reached Monterey. He went on shore, and held intercourse with the
natives at several places, and especially at the entrance of a bay in latitude 49J degrees, which he called Port San Lorenzo, the same now known
by the name of Nootka Sound. In addition to the journals of this voyage,
which render the fact incontestable, we have the high authority of Baron
Humboldt in its favour. That distinguished traveller, who had access to
the manuscript documents in the city of Mexico, states, that " Perez and
his pilot Estevan Martinez, left the port of San Bias on the 24th January
1774. On the 9th August, they anchored, the first of all European navigators, in Nootka Road, which they called the port of San Lorenzo, and
which the illustrious Cook, four years afterwards, called King George's
Sound."
In the next year, 1775, the Vice-Roy of Mexico again fitted out the
"Santiago," under the command of Bruno Heceta, with Perez her former
commander, as Ensign; and also a schooner called the 1 Senora," commanded by Juan Francisco de la Bodega y Quadra. These vessels were
commissioned to examine the North-Western Coast of America as far as
the 65th degree of latitude, and sailed in company from San Bias on the
15th March 1775.
It is unnecessary to enumerate the different places on the coast
examined by these navigators, either in company or separately. Suffice it
to say, that they landed at many places on the coast from the 41st to the
57th degree of latitude; on all of which occasions they took possession of
the country in the name of their Sovereign, according to a prescribed
regulation, celebrating mass, reading declarations asserting the right of
Spain to the territory, and erecting crosses with inscriptions to commemorate the event. Some of these crosses Were afterwards found standing
by British navigators. In relation to these voyages, Baron Humboldt
says, " In the following year" (1775 after that of Perez) " a second expedition set out from San Bias, under the command of Heceta, Agala, and
Quadra ; Heceta discovered the mouth of the Rio Columbia, called it the
Entrada de Heceta, the Pic of San Jacinto (Mount Edgecumbe) near
Norfolk Bay, and the fine port of Bucareli. I possess two very curious
small maps engraved in 1788 in the city of Mexico, which give the
bearings of the coast from the 27th to the 58th degree of latitude as they
were discovered in the expedition of Quadra."
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54
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In the face of these incontestable facts, the British Plenipotentiary
says, that "Captain Cook must also be considered the discoverer of
Nootka Sound, in consequence of the want of authenticity in the alleged
previous discovery of that port by Perez." And yet Cook did not even
sail from England until the 12th July, 1776, nearly two years after Perez
had made this discovery. The chief object of Cook's voyage was the
discovery of a north-west passage, and he never landed at any point of
the continent south of Nootka Sound. It is true that in coasting along
the continent, before he reached this place, he had observed Cape
Flattery, but he was entirely ignorant that this was the southern entrance
of the Sound of Fuca. In his journal he admits that he had heard some
account of the Spanish voyages of 1774 and 1775 before he left England;
and it is beyond question that before his departure accounts of the
voyage of Quadra had been published both in Madrid and London.
From Nootka Sound Cook did not again see land until he reached the
57th degree of north latitude.
In 1787, it is alleged by the British Plenipotentiary, that Captain
Berkeley, a British subject, discovered the Straits of Fuca; but these
Straits had been discovered by Juan de Fuca nearly two centuries before.
Besides, if there had been any merit in this discovery of Captain Berkeley,
it would have belonged to Austria, in whose service he was and under
whose colours he sailed, and cannot be appropriated by Great Britain.
And here it is worthy of remark, that these discoveries of Cook and
Berkeley in 1778 and 1787 are all those on which the British Plenipotentiary relies, previous to the date of the Nootka Sound Convention in
October 1790, to defeat the ancient Spanish title to the North-West
Coast of America.
The Undersigned will now take a position which cannot, nl his
opinion, be successfully assailed, and this is, that no discovery, exploration, or settlement, made by Great Britain on the North-West Coast of
America, after the date of the Nootka Sound Convention, and before it
was terminated by the war of 1796, can be invoked by that Power, in»
favour of her own title or against the title of Spain. Even according to
the British construction of that Convention, the sovereignty over the
territory was to remain in abeyance during its continuance, as well in
regard to Great Britain as to Spain. It would therefore have been an
open violation of faith on the part of Great Britain, after having secured
the privileges conferred upon her by the Convention, to turn round
against her partner, and perform any acts calculated to divest Spain of
her ultimate sovereignty over any portion of the coast. The palpable
meaning of the Convention was, that during its continuance, the rights of
the respective parties, whatever they may have been, should remain just
as they had existed at its commencement.
The Government of Great Britain is not justly chargeable with any
such breach of faith. Captain Vancouver acted without instructions in
attempting to take possession of the whole North-Western Coast of
America in the name of his Sovereign. This officer, sent out from
England to execute the Convention, did not carry with him any authority
to violate it in this outrageous manner.
Without this Treaty he would have been a mere intruder. Under it
Great Britain had a right to make discoveries and surveys, not thereby
to acquire a title, but merely to enable her subjects to select spots the
most advantageous, to use the language of the Convention, "for the
purpose of carrying on commerce with the natives of the country, or of
making settlements there."
If this construction of the Nootka Sound Convention be correct, and
the Undersigned does not perceive how it can be questioned, then Vancouver's passage through the Straits of Fuca in 1792, and Alexander
Mackenzie's journey across the continent in 1793, can never be transformed into elements of title in favour of Great Britain.
But even if the Undersigned could be mistaken in these positions, it
would be easy to prove that Captain John Kendrick, in the American
sloop " Washington," passed through the Straits of Fuca in 1789, three
years before Captain Vancouver performed the same voyage.    The very
KB
ana 55
instructions to the latter before he left England in January 1791, refer to
this fact which had been communicated to the British Government by
Lieutenant Meares, who has rendered his name so notorious by its connexion with the transactions preceding the Nootka Sound Convention.
It is, moreover, well known, that the whole southern division of \he
Straits had been explored by the Spanish navigators Elisa and Quimpa;
the first in 1790, and the latter in 1791.
After what has been said, it will be perceived how little reason the
British Plenipotentiary has for stating that his Government has, " as far
as relates to Yancouver's Island, as complete a case of discovery, exploration and settlement, as can well be presented, giving to Great Britain in
any arrangement that may be made with regard to the territory in dispute, the strongest possible claim to the exclusive possession of that
island." ?k%
The discovery thus relied upon is that of Nootka Sound by Cook in
1778, when it has been demonstrated that this port was first discovered
by Perez in 1774. The exploration is that by Vancouver in passing
through the Strait of Fuca in 1792, and examining the coasts of the territory in dispute, when De Fuca himself had passed through these straits
in 1592, and Kendrick again in 1789, and a complete examination of the
Western Coast had been made in 1774 and 1775, both by Perez and
Quadra. As to possession, if Meares was ever actually restored to his
possessions at Nootka Sound, whatever these may have been, the Undersigned has never seen any evidence of the fact. It is not to be found in
the journal of Vancouver, although this officer was sent from England
for the avowed purpose of witnessing such a restoration. The Undersigned knows not whether any new understanding took place between
the British and Spanish Governments on this subject; but one fact is
placed beyond all doubt, that the Spaniards continued in the undisturbed
possession of Nootka Sound until the year 1795, when they voluntarily
abandoned the place. Great Britain has never at any time since occupied
this or any other position on Vancouver's Island. Thus, on the score
either of discovery, exploration, or possession, this island seems to be the
very last portion of the territory in dispute to which she can assert a just
claim.
In the mean time the United States were proceeding with the discoveries which served to complete and confirm the Spanish-American
title to the whole of the disputed territory. Captain Robert Gray, in
June 1789, in tbe sloop $, Washington," first explored the whole eastern
coast of Queen Charlotte's Island. In the autumn of the same year,
Captain John Kendrick, having in the mean time surrendered the command of the u Columbia" to Captain Gray, sailed, as has been already
stated, in the sloop " Washington," entirely through the Straits of
Fuca.
In 1791, Captain Gray returned to the North Pacific in the "Columbia," and in the summer of that year examined many of the inlets and
passages between the 54th and 56th degrees of latitude, which the Undersigned considers it unnecessary to specify. On the 7th May 1792,
he discovered and entered Bulfinch's Harbour, where he remained at
anchor three days, trading with the Indians.
On the 11th May 1792, Captain Gray entered the mouth of the
Columbia, and completed the discovery of that great river. This river
had been long sought in vain by former navigators. Both Meares and
Vancouver, after examination, had denied its existence. Thus is the
world indebted to the enterprise, perseverance, and intelligence of an
American Captain of a trading vessel for their first knowledge of this, the
greatest river on the Western Coast of America; a river whose headsprings flow from the gorges of the Rocky Mountains, and whose branches
extend from the 42nd to the 53rd parallels of latitude. This was the last
and most important discovery on the coast, and has perpetuated the name
of Robert Gray. In all future time this great river will bear the name*of
his vessel.
It is true that Bruno Heceta, in 1775, had been opposite the bay
j©£.the Columbia, and the currents and eddies of the water caused him, as
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he remarks, to believe that this was "the mouth of some great river, or
of some passageto another sea:" and his opinion seems decidedly to have
been, that this was the opening of the strait discovered by Juan de Fuca
in 1592. To use his own language, " Notwithstanding the great difference between the position of this bay and the passage mentioned by De
Fuca, I have little difficulty in conceiving that they may be the same,
having observed equal or greater differences in the latitude of other capes
and ports on this coast, as I shall show at its proper time \ and in all
cases the latitudes thus assigned are higher than the real ones."
Heceta, from his own declaration, had never entered the Columbia,
and he was in doubt whether the opening was the mouth of a river or an
arm of the sea; and subsequent examinations of the coast by other navigators had rendered the opinion universal that no such river existed,
when Gray first bore the American flag across its bar, sailed up it channel
for'twenty-five miles, and remained in the river nine days trading with
the Indians.
The British Plenipotentiary attempts to depreciate the value to the
United States of Gray's discovery, because his ship the " Columbia," 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 mast-head, 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.
Nor does the Undersigned perceive in what manner the value of this
great discovery can be lessened by the fact that it was first published to
the world through the journal of Captain Vancouver, a British authority.
On the contrary, its authenticity being thus acknowledged by the party
having an adverse interest, is more firmly established than if it had been
first published in the United States.
From a careful examination and review of the subject, the Undersigned ventures the assertion, that to Spain belongs all the merit of the
discovery of the North-West Coast of America south of the Russian line,
not a spot on which, unless it may have been the shores of some interior bays
and inlets, after the entrance to them had been known, was ever beheld
by British subjects, until after it had been seen or touched by a Spaniard
or an American. Spain proceeded on this work of discovery not as a means
of acquiring title, but for the purpose of examining and surveying territory to which she believed she had an incontestable right. Her title had
been sanctioned for centuries by the acknowledgment or acquiescence of
all the European Powers. The United States alone could have disputed
this title, and that only to the extent of the region watered by the Colum,-
bia. The Spanish and American titles, now united by the Florida Treaty,
cannot be justly resisted by Great Britain. Considered together, they
constituted a perfect title to the whole territory* in dispute ever since the
11th May 1792, when Captain Gray passed the bar at the mouth of the
Columbia, which he had observed in August 1788.
The Undersigned will now proceed to show that this title of the
United States, at least to the possession of the territory at the mouth of
the Columbia, has been acknowledged by the most solemn and unequivocal acts of the British Government.
After the purchase of Louisiana from France, the Government of the
United States fitted out an expedition under Messrs. Lewis and Clarke,
who in 1805 first explored the Columbia from its sources to its mouth,
preparatory to the occupation of the territory by the United States.
In 1811 the settlement at Astoria was made by the Americans near
the mouth of the river, and several other posts were established in the
interior along its banks. The war of 1812 between Great Britain and
the United States, thus found the latter in peaceable possession of that
region. Astoria was captured by Great Britain during the war. The
Treaty of Peace concluded at Ghent in December 1814, provided that 57
te
all territory, places, and possessions whatsoever, taken by either party
from the other during the war," &c, " shall be restored without delay."
In obedience to the provisions of this Treaty, Great Britain restored
Astoria to the United States, and thus admitted, in the most solemn manner, not only that it had been an American territory or possession at the
commencement of the war, but that it had been captured by British arms
during its continuance. It is now too late to gainsay or explain away
these facts. Both the Treaty of Ghent and the Acts of the British
Government under it, disprove the allegations of the British Plenipotentiary, that Astoria passed " into British hands by the voluntary act of the
persons in charge of it;" and " that it was restored to the United States
in 1818, with certain well-authenticated reservations."
In reply to the first of these allegations, it is true that the Agents of
the (American) Pacific Fur Company, before the capture of Astoria, on
the 16th of October 1813, had transferred all that they could transfer,
the private property of the company, to the (British) North-West Company ; but it will scarcely be contended that such an arrangement could
impair the sovereign rights of the United States to the territory. Accordingly, the American flag was still kept flying over the fort until the
1st December 1813, when it was captured by His Majesty's sloop of war
" Racoon," and the British flag was then substituted.
That it was not restored to the United States, | with certain well-
authenticated reservations," fully appears from the act of restoration
itself, bearing date 6th October 1818. This is as absolute and unconditional as the English language can make it. That this was according
to the intention of Lord Castlereagh, clearly appears from his previous
admission to Mr. Rush of the right of the Americans to be reinstated,
and to be the party in possession while treating on the title. If British
Ministers, afterwards, in despatches to their own agents, the contents of
which were not communicated to the Government of the United States,
thought proper to protest against our title, these were in effect but mere
mental reservations, which could not affect the validity of their own
solemn and unconditional act of restoration.
But the British Plenipotentiary, notwithstanding the American discovery of the Columbia by Captain Gray, and the exploration of Lewis
and Clarke of several, of its branches from their sources in the Rocky
Mountains, as well as its main channel to the Ocean, contends, that
because Thompson, a British subject in the employment of the North-
West Company, was the first who navigated the northern branch of that
river, the British Government thereby acquired certain rights against the
United States, the extent of which he does not undertake to specify. In
other words, that after one nation has discovered and explored a great
river and several of its tributaries, and made settlements on its banks,
another nation, if it could find a single branch on its head waters which
had not been actually explored, might appropriate to itself this branch
together with the adjacent territory. If this could have been done, it
would have produced perpetual strife and collision among the nations
after the discovery of America. It would have violated the wise principle
consecrated by the practice of nations, which gave the valley drained by
a river and its branches to the nation which had first discovered and
-appropriated its mouth.
. But, for another reason, this alleged discovery of Thompson has no
merits whatever. This journey was undertaken on behalf of the North
West Company, for the mere purpose of anticipating the United States in
the occupation of the mouth of the Columbia; a territory to which no
nation, unless it may have been Spain, could, with any show of justice,
dispute their right. They had acquired it by discovery and by exploration, and were now in the act of taking possession. It was in an enterprise undertaken for such a purpose, that Thompson, in hastening from
Canada to the mouth of the Columbia, descended the north, arbitrarily
assumed by Great Britain to be the main, branch of this river. The period
was far too late to impair the title of either Spain or the United States by
any such proceeding.    | .
Mr. Thompson, on his return, was accompanied by a party from
\l 58
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Astoria, under Mr. David Stuart, who established a post at the confluerace
of the Okinagan with the north branch of the Columbia, about 600 miles
above the mouth of the latter.
In the next year, 1812, a second trading post was established by a
party from Astoria, on the Spokan, about 650 miles from the Ocean.
It thus appears, that previous to the capture of Astoria by the
British, the Americans had extended their possessions up the Columbia
650 miles. The mere intrusion of the North-Western Company into this
territory, and the establishment of two or three trading posts in 1811
and 1812, on the head waters of the river, can surely not interfere with
or impair the Spanish-American title. What this Company may have
done in the intermediate period until the 20th October 1818, the date of
the first treaty of joint occupation, is unknown to the Undersigned, from
the impenetrable mystery in which they have veiled their proceedings.
After the date of this Treaty, neither Great Britain nor the United States
could have performed any act affecting their claims to the disputfo
territory.
To sum up the whole, then, Great Britain cannot rest her claims to
the North-West Coast of America upon discovery. As little will her
single claim by settlement at Nootka Sound avail her. Even Belsham,
her own historian, forty years ago declared it to be certain, from the most
authentic information, " that the Spanish flag flying at Nootka was never
struck, and that the territory had been virtually relinquished by Great
Britain."
The agents of the North-West Company penetrating the continent
from Canada in 1806, established their first trading post west of the
Rocky Mountains, at Eraser's Lake in the 54th degree of latitude, and
this with the trading post established by Thompson, to which the Undersigned has just adverted, and possibly some others afterwards, previous
to October 1818, constitutes the claim of Great Britain by actual settlement.
Even British geographers have not doubted our title to the territory
in dispute. There is a large and splendid globe now in the Department
of State, recently received from London and published by Malby and
Company, manufacturers and publishers to the Society for the Diffusion
of Useful Knowledge, which assigns this territory to the United States.
Upon the whole, from the most careful and ample examination which
the Undersigned has been able to bestow upon the subject, he is satisfied
that the Spanish-American title now held by the United States, embracing
the whole territory between the parallels of 42° and 54° 40', is the best in
existence to this entire region, and that the claim of Great Britain to any
portion of it has no sufficient foundation.
Notwithstanding such was, and still is, the opinion of the President,
yet, in the spirit of compromise and concession, and in deference to the
action of his predecessors, the Undersigned, in obedience to his instructions, proposed to the British Plenipotentiary to settle the controversy by
dividing the teritory in dispute by the 49th parallel of latitude, offering
at the same time to make free to Great Britain, any port or ports on
Vancouver's Island south of this latitude which the British Government
might desire. The British Plenipotentiary has correctly suggested that
the free navigation of the Columbia River was not embraced in this proposal to Great Britain; but, on the other hand, the use of free ports on
the southern extremity of this island had not been included in former
offers.
Such a proposition as that which has been made, never would have
been authorized by the President had this been a new question.
Upon his accession to office he found the present negotiation pending.
It had been instituted in the spirit and upon the principle of compromise.
Its object was, as avowed by the negotiators, not to demand the whole
territory in dispute for either country; but, in the language of the first
protocol, i to treat of the respective claims of the two countries to- the
Oregon Territory, with the view to establish a permanent boundary
between them westward of the Rocky Mountains to the Pacific Ocean.".
Placed in this position, and considering that Presidents Monroe and Adams had, on former occasions, offered to divide the territory in dispute
by extending the 49th parallel of latitude to the Pacific Ocean, he felt it
to be his duty not abruptly to arrest the negotiation, but so far to yield
his own opinion as once more to make a similar offer.
Not only respect for the conduct of his predecessors, but a sincere
and anxious desire to promote peace and harmony between the two countries, influenced him to pursue this course. The Oregon Question presents
the only cloud which intercepts the prospect of a long career of mutual
friendship and beneficial commerce between the two nations, and this
cloud he desired to remove.
These ar6 the reasons which actuated the President to offer a proposition so liberal to Great Britain.
And how has the proposition been received by the British Plenipotentiary? It has been rejected, without even a reference to his own
Government. Nay more, the British Plenipotentiary, to use his own language, I trusts that the American Plenipotentiary will be prepared to
offer some further proposal for the settlement of the Oregon Question,
more consistent with fairness and equity, and with the reasonable expectations of the British Government."
PJ^Under such circumstances, the Undersigned is instructed by the President to say, that he owes it to his own country, and a just appreciation of
her title to the Oregon Territory, to withdraw this proposition to the
British Government, which had been made under his direction, and it is
hereby accordingly withdrawn. ? ?
|^<: In taking this necessary step, the President still cherishes the hope
thatjthis long-pending controversy may yet be finally adjusted in such a
manner as not to disturb the peace or interrupt the harmony now so
happily subsisting between the countries.
Che Undersigned, &c,
(S
igned)
JAMES BUCHANAN.
No. 30.
The Earl of Aberdeen to Mr. Pakenham.
(Extract.) Foreign Office, November 28, 1845.
UNLESS Mr. Buchanan should be disposed to renew his late proposition, which is greatly to be desired, there remains for us but one
course to pursue, and that is, to urge again in pressing terms the
expediency of a reference of the whole case to the arbitration of some
friendly Sovereign or State.
In the present temper of the public mind in the United States, it
appears to Her Majesty's Government, that a resort to arbitration is the
most prudent, and perhaps the only feasible, step which both Governments
could take, and the best calculated to allay the existing effervescence of
popular feelings which might otherwise expose both nations to the hazard
of a rupture upon a point which, however its importance may be magnified by national pride or popular passion on both sides, is in reality but
of comparatively small public value or interest to either party; and
certainly not one upon which wise and patriotic Governments would wish
to stake the peace and happiness of their people.
It is probable that you may have already taken this step; but if you
should not yet have done so, I have to desire that you will present without
delay to the United States' Government an official note proposing a reference of the whole question of an equitable division of the territory to the
arbitration of some friendly Sovereign or State. In that note you will
not fail to express the deep regret which is felt by Her Majesty's Government at the failure of all their efforts to effect a friendly settlement of the
conflicting claims by direct negotiation ■ between the two Governments.
Her Majesty's  Government  are still persuaded that great advantages ,;W'
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60
would have resulted to both parties from such a mode of settlement, had
it been practicable; and they rejoice that they cannot charge themselves
with having caused its failure. The proposal which you are now instructed to make, is a proof of our confidence in the justice of our own
claims; but it is a proof also of our readiness to incur the risk of a
great sacrifice, for the preservation of peace and of our friendly relations
with the United States. It is made in a spirit of moderation and fairness
of which the world will judge. Should the Government of the United
States reject this proposal, and at the same time virtually refuse to settle
our differences by means of direct negotiation, in a matter which cannot
be said to affect the honour or the essential interests of either party, they
will render themselves deeply responsible. Be the consequences what
they may, Her Majesty's Government will have no choice but to maintain
unimpaired those rights which they believe Great Britain to possess, and
which they had in vain sought to make the subject of equitable compromise.
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No. 31.
Mr. Pakenham to the Earl of Aberdeen.—(Received December 29.)
My Lord, Washington, December 2, 1845.
I HAVE the honour herewith to transmit copies of the President's
message to Congress communicated this day.
I have, &c,
(Signed) PAKENHAM.
Inclosure in No. 31.
Extract from the President's Message of December 2, 1845.
MY attention was early directed to the negotiation which, on the
4th of March last, I found pending at Washington between the United
States and Great Britain, on the subject of the Oregon Territory. Three
several attempts had been previously made to settle the questions in dispute between the two countries by negotiation upon the principle of compromise ; but each had proved unsuccessful.
These negotiations took place at London, in the years 1818, 1824, and
1826; the two first under the administration of Mr. Monroe, and the last
under that of Mr. Adams. The negotiation of 1818 having failed to
accomplish its object, resulted in the Convention of the 20th of October
of that year. By the Third Article of that Convention, it was 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 object of the High Contracting Parties in that respect being, to prevent disputes and differences among themselves."
The negotiation of 1824 was productive of no result, and the Convention of 1818 was left unchanged.
The negotiation of 1826 having also failed to effect an adjustment by 61
compromise, resulted in the Convention of August the 6th 1827, by which
it was agreed to continue in force, for an indefinite period, the provisions
of the Third Article of the Convention of the 20th of October 1818 ; and it
was further provided, that " it shall be competent, however, to either of
the Contracting Parties, in case either should think fit, at any time after the
20th day of October 1828, on" giving due notice of twelvemonths to the
other Contracting Party, to annul and abrogate this Convention ; and it
shall, in such case, be accordingly entirely annulled and abrogated, after
the expiration of the said term of notice." In these attempts to adjust
the controversy, the parallel of the 49th degree of north latitude had been
offered by tbe United States to Great Britain, and in those of 1818 and
1826, with a further concession of the free navigation of the Columbia
River south of that latitude. The parallel of the 49th degree, from the
Rocky Mountains to its intersection with the north-easternmost branch of
the Columbia, and thence down the channel of that river to the sea, had
been offered by Great Britain, with an addition of a small detached territory north of the Columbia. Each of these propositions had been rejected
by the parties respectively.
In October 1843, the Envoy Extraordinary and Minister Plenipotentiary of the United States in London was authorized to make a similar
offer to those made in 1818 and 1826. Thus stood the question, when the
negotiation was shortly afterwards transferred to Washington; and on
the 23rd of August 1844, was formally opened, under the direction of my
immediate predecessor. Like all the previous negotiations, it was based
upon principles of " compromise;" and the avowed purpose of the parties was, 1 to treat of the respective claims of the two countries to the
Oregon Territory, with the view to establish a permanent boundary
between them westward of the Rocky Mountains to the Pacific Ocean."
Accordingly, on the 26th of August 1844, the British Plenipotentiary
offered to divide the Oregon Territory by the forty-ninth parallel of north
latitude, from the Rocky Mountains to the point of its intersection with
the north-easternmost branch of the Columbia River, and thence down
that river to the sea; leaving the free navigation of the river to be enjoyed
in common by both parties ; the country south of this line to belong to
the United States, and that north of it to Great Britain. At the same
time, he proposed, in addition, to yield to the United States a detached
territory north of the Columbia, extending along the Pacific and the
Straits-of Fuca, from Bulfinch's Harbour inclusive, to Wood's Canal; and
to make free to the United States any port or ports south of latitude forty-
nine degrees which they might desire, either on the main land, or on
Quadra and Vancouver's Island. With the exception of the free ports,
this was the same offer which had been made by the British, and rejected
by the American, Government in the negotiation of 1826. This proposition was properly rejected by the American Plenipotentiary on the day
it was submitted. This was the only proposition of compromise offered
by the British Plenipotentiary. The proposition on the part of Great
Britain having been rejected, the British Plenipotentiary requested that a
proposal should be made by the United States for " an equitable adjustment of the question."
When I came into office, I found this to be the state of the negotiation. Though entertaining the settled conviction that the British pretensions of title could not be maintained to any portion of the Oregon
Territory upon any principle of public law recognised by nations,
yet, in deference to what had been done by my predecessors, and especially
in consideration that propositions of compromise had been thrice made by
two preceding Administrations to adjust the question on the parallel of
forty-nine degrees, and in two of them yielding to Great Britain the free
navigation of the Columbia, and that the pending negotiation had been
commenced on the basis of compromise, I deemed it to be my duty not
abruptly to break it off. In consideration, too, that under the Conventions of 1818 and 1827, the citizens and subjects of the two Powers held a
joint occupancy of the country, I was induced to make another effort to
settle this long-pending controversy in the  spirit of moderation which ECOM
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had given birth to the renewed discussion. A proposition was accordingly made, which was rejected by the British Plenipotentiary, who, without submitting any other proposition, suffered the negotiation on his part
to drop, expressing his trust that the United States would offer what he
saw fit to call " some further proposal for the settlement of the Oregon
Question, more consistent with fairness and equity, and with the reasonable expectations of the British Government." The proposition thus
offered and rejected, repeated the offer of the parallel of forty-nine degrees
of north latitude, which had been made by two preceding Administrations,
but without proposing to surrender to Great Britain, as they had done,
the free navigation of the Columbia River. The right of any foreign
Power to the free navigation of any of our rivers through the heart of our
country, was one which I was unwilling to concede. It also embraced a
provision to make free to Great Britain any port or ports on the cap of
Quadra and Vancouver's Island south of this parallel. Had this been a
new question, coming under discussion for the first time, this proposition
would not have been made. The extraordinary and wholly inadmissible
demands of the British Government, and the rejection of the proposition
made in deference alone to what had been done by my predecessors,' and
the implied obligation which their acts seemed to impose, afford satisfactory evidence that no compromise which the United States ought to!
accept can be effected. With this conviction, the proposition of compromise which had been made and rejected, was, by my direction, subsequently withdrawn, and our title to the whole Oregon Territory asserted,
and, as is believed, maintained by irrefragable facts and arguments;
The civilized world will see in these proceedings a spirit of liberal
concession on the part of the United States; and this Government will be
relieved from all responsibility which may follow the failure to settle the
controversy.
All attempts at compromise having failed, it becomes the duty of
Congress to consider what measures it may be proper to adopt for the
security and protection of our citizens now inhabiting, Or who may hereafter inhabit, Oregon, and for the maintenance of our just title to that
territory. In adopting measures for this purpose, care should be taken
that nothing be done to violate the stipulations of the Convention of
1827 which is still in force. The faith of treaties in their letter and
spirit, has ever been, and I trust will ever be, scrupuously observed by
the United States. Under that Convention, a year's notice is required to
be given by either party to the other, before the joint occupancy shall
terminate, and before either can rightfully assert or exercise exclusive
jurisdiction over any portion of the territory. This notice it would, in
my judgment, be proper to give; and I recommend that provision be
made by law for giving it accordingly, and terminating, in this manner,
the Convention of the 6th of August i827.
It will become proper for Congress to determine what legislation they
can in the mean time adopt, without violating this Convention. Beyond all
question, the protection of our laws and our jurisdiction, civil and
criminal, ought to be immediately extended over our citizens in Oregon.
They have had just cause to complain of our long neglect in this particular, and have, in consequence, been compelled, for their own security
and protection, to establish a provisional Government for themselves.
Strong in their allegiance, and ardent in their attachment to the United
States, they have been thus cast upon their own resources. They are
anxious that our laws should be extended, over them, and I recommend
that this be done by Congress with as little delay as possible, in the full
extent to which the British Parliament have proceeded in regard to
British subjects in that territory, by their Act of July the 2nd, 1821,
" for regulating the fur trade, and establishing a criminal and civil jurisdiction within certain parts of North America." By this Act Great Britain
extended her laws and jurisdiction, civil and criminal, over her subjects
engaged in the fur trade in that territory. By it, the courts of the Province
of Upper Canada were empowered to take cognizance of causes civil and
criminal, justices of the peace and other judicial officers were authorized to 63
be appointed in Oregon, with power to execute all process issuing from the
courts of that province, and to "sit and hold Courts of Record for the
trial of criminal offences and misdemeanours not made the subject of
capital punishment; and also of civil cases, where the cause of action
shall not " exceed in value the amount or sum of two hundred pounds."
Subsequent to the date of this Act of Parliament, a grant was made
from the " British Crown" to the Hudson's Bay Company ofthe exclusive
trade with the Indian tribes in the Oregon Territory, subject to a reservation that it shall not operate to the exclusion " of the subjects of any
foreign States who, under or by force of any convention for the time being,
between us and such foreign States respectively, may be entitled to, and
shall be engaged in, the said trade."
It is much to be regretted, that, while under this Act British subjects
have enjoyed the protection of British laws and British judicial tribunals
throughout the whole of Oregon, American citizens in the same territory
have enjoyed no such protection from their Government. At the same
time, the result illustrates the character of our people and their institutions. In spite of this neglect, they have multiplied, and their number is
rapidly increasing in that territory. They have made no appeal to arms,
but have peacefully fortified themselves in their new homes by the adoption of republican institutions for themselves; furnishing another example
of the truth that self-government is inherent in the American breast, and
must prevail. It is due to them that they should be embraced and
protected by our laws.
It is deemed important that our laws regulating trade and intercourse
with the Indian tribes east of the Rocky Mountains, should be extended
to such tribes as dwell beyond it.
The increasing emigration to Oregon, and the care and protection
which is due from the Government to its citizens in that distant region,
make it our duty, as it is our interest, to cultivate amicable relations
with the Indian tribes of that territory. For this purpose, I recommend
that provision be made for establishing an Indian agency and such sub-
agencies as may be deemed necessary, beyond the Rocky Mountains
For the protection of emigrants whilst on their way to
against the attacks of the Indian tribes occupying the country through
which they pass, I recommend that a suitable number of stockades and
block-house forts be erected along the usual route between our frontier
settlements on the Missouri and the Rocky Mountains; and that an adequate force of mounted riflemen be raised to guard and protect them on
their journey. The immediate adoption of these recommendations by
Congress will not violate the provisions of the existing treaty. It will be
doing nothing more for American citizens than British laws have long
since done for British subjects in the same territory.
It requires several months to perform the voyage by sea from the
Atlantic States to Oregon: and although we have a large number of
whale-ships in the Pacific, but few of them afford an opportunity of interchanging intelligence, without great delay, between our settlements in
that distant region and the United States. An overland mail is believed
to be entirely practicable; and the importance of establishing such a
mail at least once a-month, is submitted to the favourable consideration
of Congress.
It is submitted to the wisdom of Congress to determine whether, at
their present session, and until after the expiration of the year's notice,
any other measure may be adopted, consistently with the Convention of
1827, for the security of our rights, and the government and protection of
our citizens in Oregon. That it will ultimately be wise and proper to
make liberal grants of land to the patriotic pioneers, who, amidst privations and dangers, lead the way through savage tribes inhabiting the
vast wilderness intervening between our frontier settlements and Oregon,
and who cultivate, and are ever ready to defend the soil, I am fully satisfied. To doubt whether they will obtain such grants as soon as the Convention between the United States and Great Britain shall have ceased to
exist, would be to doubt the justice of Congress ; but, pending the year's
Oregon, 64
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notice, it is worthy of consideration whether a stipulation to this effect
may be made, consistently with the spirit of that Convention.
The recommendations which I have made as to the best manner of
securing our rights in Oregon, are submitted to Congress with great
deference. Should they, in their wisdom, devise any other mode better
calculated to accomplish the same object, it shall meet with my hearty
concurrence.
At the end of the year's notice, should Congress think it proper to
make provision for giving that notice, we shall have reached a period
when the national rights in Oregon must either be abandoned or firmly
maintained. That they cannot be abandoned without a sacrifice of both
national honour and interest, is too clear to admit of doubt.
Oregon is a part of the North American continent to which it is
confidently affirmed the title of the United States is the best now in existence. For the grounds on which that title rests, 1 refer you to the correspondence of the late and present Secretary of State with the British
Plenipotentiary during the negotiation. The British proposition of compromise, which would make the Columbia the line south of forty-nine
degrees, with a trifling addition of detached territory to the United States
north of that river, and would leave on the British side two-thirds of the
whole Oregon Territory, including the free navigation of the Columbia
and all the valuable harbours on the Pacific, can never, for a moment, be
entertained by the United States without an abandonment of their just
and clear territorial rights, their own self-respect, and the national
honour. For the information of Congress, I communicate herewith the
correspondence which took place between the two Governments during
the late negotiation.
nM.
No. 32.
Mr. Pakenham to the Earl of Aberdeen.— (Received January 16, 1846.)
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(Extract.) Washington, December 29, 1845.
I HAVE the honour herewith to inclose a copy of an official note,
which, in obedience to the instructions contained in your Lordship's
despatch of 28th November, I presented, two days ago, to Mr. Buchanan,
proposing a reference of the whole question of an equitable division of
the Oregon Territory to the arbitration of some friendly Sovereign or
State.
I did not put this note into Mr. Buchanan's hands, until I had, as
likewise contemplated by your Lordship's instructions, ascertained from
him that there was no disposition on the part of the United States' Government to renew their late proposal.
He read the note over in my presence, and then proceeded to say,
that in point of form and language there was nothing in it to object to;
but that his impression was, that the President would not accept the proposal, and furthermore, that if the President did accept it, it would not
receive the sanction of the Senate.
Nevertheless, he went on to say that the matter was too grave to be
lightly dealt with ; that it required and would receive the most serious
attention of the Cabinet, and consequently that it would be some days
before he should be prepared to give me an answer. 65
Inclosure in No. 32.
Mr. Pakenham to Mr. Buchanan.
Washington, December 27, 1845.
AN attentive consideration of the present state of affairs with
reference to the Oregon Question, has determined the British Government
to instruct the Undersigned, &c, again to represent, in pressing terms,
to the Governnient of the United States, the expediency of referring the
whole question of an equitable division of that territory to the arbitration
of some friendly Sovereign or State.
Her Majesty's Government deeply regret the failure of all their
efforts to effect a friendly settlement of the conflicting claims by direct
negotiation between the two Governments. They are still persuaded that
great advantages would have resulted to both parties from such a mode of
settlement, had it been practicable; but there are difficulties now in the
way of that course of proceeding, which it might be tedious to remove,
while the importance of an early settlement seems to become at each
moment more urgent.
Under these circumstances, Her Majesty's Government think that a
resort to arbitration is the most prudent, and perhaps the only feasible,
step which could be taken, and the best calculated to allay the existing
effervescence of popular feeling, which might otherwise greatly embarrass
the efforts of both Governments to preserve a friendly understanding
between the two countries.
The Government of the United States will see in the proposal which
the Undersigned is thus instructed to make, a proof of the confidence of
the British Government in the justice of their own claim. They will also
see in it a proof of the readiness of the British Government to incur the
risk of a great sacrifice for the preservation of peace and of their friendly
relations with the United States. It is made in a spirit of moderation
and fairness of which the world will judge.
The British Government confidently hope that the Government of the
United States will not reject a proposal made with such a friendly
intention and for a purpose so holy.
There is nothing in it, they are convinced, not perfectly compatible
with the strictest regard for the honour and just interests of both parties,
particularly when it is considered of what small value to either is the
portion of territory which in reality forms the subject of controversy,
compared with the importance of preserving a state of peace and goodwill between two such nations.
The Undersigned, &c,
(Signed) R. PAKENHAM.
No. 33.
Mr. Pakenham to the Earl of Aberdeen.—(Received January 28.)
(Extract.) Washington, Januaty 5, 1846.
I HASTEN to transmit to your Lordship the inclosed copy of a note
which I received this morning from Mr. Buchanan, containing the answer
of the United States' Government to the proposal which 1 was lately
instructed by your Lordship to make, for referring the whole question of
an equitable partition of the Oregon Territory to the arbitration of some
friendly Sovereign or State.
K 66
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Inclosure in No. 33.
Mr. Buchanan to Mr. Pakenham.
Department of State,
Washington, January 3, 1846.
THE Undersigned, Secretary of State of the United States, has the
honour to acknowledge the receipt of the note of Mr. Pakenham Her
Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary,
dated the 27th ultimo, by which, under instructions from his Government,
he proposes to the Government of the United States the expediency of
referring the whole question of an equitable division of that (the Oregon)
territory to the arbitration of some friendly Sovereign or State.
The Undersigned has submitted this note to the President, who,
after having bestowed upon it that respectful consideration so eminently
due to any proposition emanating from the British Government, has
instructed him to give it the following answer.
The British Government do not propose to refer to arbitration the
question of the title to the Oregon Territory, claimed by the two Powers
respectively. It is a proposition to refer to a friendly Sovereign or State
merely the partition or equitable division of that territory between the
parties. It assumes the fact that the title of Great Britain to a portion of
the territory is valid, and thus takes for granted the very question
in dispute. Under this proposition, the very terms of the submission
would contain an express acknowledgment of the right of Great Britain to
a portion of the territory, and would necessarily preclude the United
States feom claiming the whole before the arbitrator. This, too, in the
face of the note of the Undersigned to Mr. Pakenham, of the 30th August
last, by which the President had asserted in the most solemn form the
title of the United States to the whole territory. Even if there were not
other conclusive reasons for declining the proposition, this alone would
be deemed sufficient by the President.
The President heartily concurs with the British Government in their
regret that all attempts to settle the Oregon Question by negotiation
have hitherto failed. He cannot, however, concur with that Government
in the opinion that a resort to arbitration on the terms proposed would
be followed by happier consequences. On the contrary, he believes that
any attempt to refer this-question to a third Power, would only involve it
in new difficulties.
In declining this proposition, the President refers to the sentiment
expressed in the note of the Undersigned Of the 30th August last, to
which allusion has already been made, that " he cherishes the hope that
this long-pending controversy may yet be finally adjusted, in such a manner as not to disturb the peace, or interrupt the harmony now so happily
subsisting between the two nations."
The Undersigned, &c,
(Signed; JAMES BUCHANAN.
No. 34. |p     ;.::".)
Mr. Pakenham to the Earl of Aberdeen.~~*-($Received Febnuaty 15.)     .%■/
(Extract.) Washington, January 29, 1846;
i^TITH my despatch of the 5th instant, I had the honour to transrhit
a copy of the answer which I had received from Mr. Buchanan to the note
which, in obedience to the instructions contained in your Lordship's
despatch of 28th November, 1 addressed to him on 29th of last month,
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proposing that the whole question of an equitable division of the Oregon
Territory should be referred to the arbitration of some friendly Sovereign
or State.
The objection of the United States' Government to that proposal
seemed to rest principally, although not exclusively, on the fact that
according to the terms of the proposed reference, the United States would
be denied the power to claim the whole territory before the arbitrator.
My reply to Mr. Buchanan's note was a simple acknowledgment of
its receipt, adding that I should take an early opportunity to transmit it
to Her Majesty's Government.
On further reflection, however, it occurred to me that, in the present
state of affairs, it might be advantageous to give further proof of a desire,
if possible, to effect an amicable settlement of the question, by inquiring
of Mr. Buchanan whether, supposing Her Majesty's Government to entertain no objection to such a course of proceeding, it would suit the views
of the United States' Government to refer, not the question of an equitable
division of the territory, but the question of title to the whole, to arbitration ; and even to go so far as to suggest that, if the Government of the
United States objected to the arbitration of a friendly Sovereign or State,
some other mode of adjustment on the principle of arbitration might be
adopted for the accomplishment of the object desired.
For this purpose I delivered to Mr. Buchanan, on the 16th instant,
the note of which 1 have the honour to inclose a copy. I humbly hope
that, in the step I have thus taken, I shall not have acted contrary to the
wishes of Her Majesty's Government.
Inclosure in No. 34.
§Br. Pttkenham to Mr. Buchanan.
Washington^, January 16, 1846:.
WITH an anxious desire to contribute, by every means in his
power, to a satisfactory conclusion of the question pending between the
two Governments respecting Oregon, the Undersigned Her Britannic
Majesty's Envoy Extraordinary, &c, has reflected on the contents of the
note addressed to him on the 3rd instant by the Secretary of State of the
United States, in answer to that which the Undersigned had the honour to
address to him on the 27th of last month.
The note of the Undersigned proposed to the Government of the
United States, that the whole question of an equitable partition of the
Oregon Territory should be referred to the arbitration of some friendly
Sovereign or State.
In his answer, the Secretary of State informed the Undersigned that
this proposition could not be accepted. That it did not propose to refer
to arbitration the question of the title to the Oregon Territory, claimed
by the two Powers respectively. That in proposing to refer to a friendly
Sovereign or State merely the partition or equitable division of the territory between the parties, it assumes the fact that the title of Great Britain
to a portion of the territory is valid, and thus takes for granted the very-
question in dispute. That under this proposition, the very terms of the
submission would contain an acknowledgment of the right of Great
Britain to a portion of the territory, and would necessarily preclude the
United States from claiming the whole territory before the arbitrator;
and this, too, the Secretary of State goes on to observe, in the face of his
note to the Undersigned of 30th August, by which *the President had
asserted in the most solemn form the title of the United States to the
whole territory.
It is not the purpose of the Undersigned, in the present note, to
renew the discussion as to the title of either party, Great Britain or the
United States, to the whole or to any part of the Oregon Territory.    He
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must, however, beg leave, with reference to the observation which he has
just quoted, to remind the United States' Secretary of State that if the
Government of the United States have formally advanced a claim to the
whole of the Oregon Territory, it is no less certain that Great Britain has
in a manner equally formal declared that she too has rights in the Oregon
Territory incompatible with the exclusive claim advanced by the United
States.
This declaration arising from a conviction equally sincere will, the
Undersigned is persuaded, be viewed with the same consideration by the
Government of the United States as they expect that their own declaration should receive at the hands of Great Britain.
This premised, the object of the Undersigned in addressing to" Mr.
Buchanan the present communication, is to ascertain from him whether,
supposing the British Government to entertain no objection to such a
course, it would suit the views of the United States' Government to refer
to arbitration, not as has already been proposed, the question of an
equitable partition of the territory, but the question of title in either of
the two Powers to the whole territory, subject of course to the condition
that if neither should be found, in the opinion of the arbitrator, to possess
a complete title to the whole territory, there should in that case be
assigned to each that portion of territory which would in the opinion of
the arbitrating Power be called for by a just appreciation of their respective claims.
The Undersigned has suggested a reference on the above principle, to
some friendly Sovereign or State. This the Undersigned believes to be
the course usually followed in such cases, it is that which has already
been resorted to by the two Governments, and more than once. But
there may be other forms of arbitration perhaps more agreeable to the
Government of the United States.
There might be, for instance, a Mixed Commission, with an umpire
appointed by common consent, or there might be a Board composed of the
most distinguished civilians and jurists of the time appointed in such a
manner as should bring all pending questions to the decision of the most
enlightened, impartial, and independent minds.
In the present position of affairs, and feeling how much the interest
of both countries requires an early as well as an amicable and satisfactory adjustment of existing difficulties, the Undersigned earnestly invites
the Secretary of State to take the subject of this note into consideration,
with a view to such an arrangement on the principle of arbitration, as
may seem to the Government of the United States to be most just, wise,
and expedient.
The Undersigned, &c,
(Signed) R. PAKENHAM.
No. 35.
The Earl of Aberdeen to Mr. Pakenham.
Sir,
Foreign Office, March 3, 1846.
I HAVE much satisfaction in conveying to you the entire approval
by Her Majesty's Government of the steps which, as reported in your
despatch of the 29th January, you took, and of the letter which you
addressed to the American Secretary of State, for the purpose of ascertaining clearly and authoritatively whether the United States' Government
would be disposed to admit the application of the principle of an arbitration in the Oregon Question on any other terms than those which they
had already rejected.
In thus acting, you have in the most judicious and satisfactory manner anticipated the instructions which I was preparing to forward to you
on this subject.
■   I N I I »H> I <t  4 H ■ ■ i fci 69
We have now nothing to do but to await Mr. Buchanan's reply to your
appeal to him, although I collect from your despatch that your proposal will
certainly be refused. Should that reply however be of such a nature as to
give any ground of hope that the matter in dispute may yet be brought
to an amicable issue by means of direct negotiation, I shall gladly avail
myself of such an opening. If not, it will then be for Her Majesty's
Government to consider what measures it may be expedient to adopt, in
order to meet any emergency which may arise.
I am, &C,
(Signed) ABERDEEN.
No. 36.
Mr. Pakenham to the Earl of Aberdeen.—(Received March 3.)
My Lord, Washington, February 5, 1846.
I HAVE the honour herewith to inclose a copy of a note which I
received yesterday from Mr. Buchanan, in answer to that which I
addressed to him on the 16th of January, of which I had the honour to
transmit a copy with my despatch of the 29th ultimo.
I have &c.
(Signed) R.' PAKENHAM.
Inclosure in No. 36.
Mr. Buchanan to Mr. Pakenham.
Department of State,
Washington, February 4, 1846.
THE Undersigned, Secretary of State of the United States, has the
honour to acknowledge the receipt of the note of Mr. Pakenham, Her
Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary,
dated on the 16th ultimo, by which he again proposes a reference of the
Oregon Question to arbitration. Under his present proposition, the
powers of the arbitrator would not as in his last, be limited in terms to
the division of the territory between the parties, but would extend to the
question of their conflicting titles. There is, however, a condition annexed
to this offer which exposes it to the same objection in point of fact, if not
in form, which was prominently presented in the answer of the Undersigned to Mr. Pakenham's last proposal. This condition is, " that if
neither (party) should be found in the opinion of the arbitrator to possess
a complete title to the whole territory, there should, in that case, be
assigned to each that portion of territory which would, in the opinion of
the arbitrating power, be called for by a just appreciation of the respective claims of each." If the Government of the United States should
consent to an arbitration upon such a condition, this might and probably
would be construed into an intimation, if not a direct invitation, to the
arbitrator to divide the territory between the parties. Were it possible
for the President, under any circumstances, to consent to refer the subject to arbitration, the title, and the title alone, detached from every other
consideration, is the only question which could be submitted. If not confined to a single point, so strong is the natural disposition of arbitrators
to please both parties, that in almost every instance, whether of national
or individual controversies, they make a compromising award. We have
a memorable example of this in our last arbitration with Great Britain. :;v.-V
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Notwithstanding that the arbitrator, under the terms of the submission,
was clearly and explicitly confined to the decision of which was the line
of highlands described in the Treaty ol Peace of 1783; yet, instead of pursuing' any range of highlands whatever, he advised that the line should
run along the bed of a river; and actually divided the territory in dispute
between the parties by " the middle of the deepest channel of the St.
John's."
The Undersigned might content himself, in answer to the present
proposition, with a reference to the observations contained in his last note
to Mr. Pakenham of the 3rd ultimo. In that it was plainly intimated not
only that there are " other conclusive reasons for declining the proposition," independently'Of the one which had-been prominently stated, butit
was expressly asserted, as the belief of the President, | that any attempt
to refer this question to a third Power w.ould only involve it in new difficulties."
The Undersigned will however proceed to state a simple reason, which,
apart from the intrinsic difficulty of selecting a suitable arbitrator, as well
as other considerations that might be adduced, is conclusive on the mind
.of the President against a reference of this question to arbitration in any
form which can be devised, no matter what may be the character of the
arbitrator—whether sovereign, citizen, or subject. This reason is, that
he does not believe the territorial rights of this nation to be a proper
subject for arbitration. It may be true that, under peculiar circumstances, if the interest at ^take were comparatively small, and if both
parties stood upon an equal footing, there might be no insuperable objection to such a course. But what is the extent of territory in dispute on
the present occasion? It embraces nearly thirteen degrees of latitude
along the north-west coast of the Pacific, and stretches eastward to the
summit of the Rocky Mountains. Within its limits several powerful and
prosperous States of the Union may be embraced. It lies contiguous, on
this continent, to the acknowledged territory of the United States, and is
destined, at no distant day, to be peopled by our citizens. This territory
presents the avenue through which the commerce ^£ our Western States
can be profitably conducted with Asia and the western coasts of this continent, and its-ports-, the only harbours belonging to the United States to
which our numerous whalers and other vessels in that region can resort.
And yet, vast as are its dimensions, it contains not a single safe andjieom-
modious harbour from its southern extremity until we approach the 49th
parallel of latitude.
It is far from the intention of the Undersigned :again to open the discussion of the conflicting claims of -'the two Powers to the Oregon Territory. It is sufficient for him to state the continued conviction of the
President, that the United States hold the best title in existence to the
whole of this territory. Under this conviction he cannot consent to
jeopard for his country all the great interests involved, and by any possibility, however remote, to deprive the Republic of all the good harbours
on the coast, by referring the question to arbitration.
Neither is the territory in dispute of equal, or nearly equal, value to
the two Powers. Whilst it is invaluable to the United States, it is of
comparatively small importance to Great Britain. To her Oregon would
be but a distant colonial possession of doubtful value, and which, from the
natural progress of human events, she would not probably long enough
enjoy to derive from it essential benefits; whilst to the United States it
would become an integral and essential portion to the Republic. The
gain to Great Britain, she would never sensibly feel, whilst the loss to the
United States would be.irreparable.
The Undersigned is perfectly aware that such considerations can have
no bearing upon the question of the title of either party. They are presented solely for the purpose of explaining the views of the President in
his refusal to adopt any measure which should withdraw our title from
the control of the Government and the people of the United States, and
place it within the discretion of any arbitrator, no matter how intelligent
and respectable.
mxn'Bt^momstm 71
The President cordially concurs with the Government of Great
Britain in desiring that the present controversy may be amicably adjusted.
Of this he has given the strongest proof before the whole world. He
believes that as there are no two nations on the earth more closely bound
together by the ties of commerce, so there are none who ought to be more
able or willing to do each other justice, without the interposition of any
arbitrator.
The Undersigned, &c,
(Signed) JAMES BUCHANAN.
No. 37.
The Earl of Aberdeen to Mr. Pakenham.
Sir, Foreign Office, March 3, 6 p. m„ 1846.
SINCE my preceding despatch of this day's date, was written, I
have received your despatch of 5th February with its inclosure, by
which you put me in possession of the final rejection by the United
States' Government, of our proposal of a reference of the Oregon
Question to arbitration.
There is of course no time before the departure of the mail of this
evening, for the consideration of so serious a question as that which is
involved in the President's decision as now announced.
I am, &c,
(Signed) ABERDEEN.
BH     

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