USA > California > The history of Oregon and California & the other territories of the northwest coast of North America > Part 50
USA > Oregon > The history of Oregon and California & the other territories of the northwest coast of North America > Part 50
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sarily included, with all other Spanish possessions and claims in that quarter, in the stipulations of the Nootka convention.
Even if it could be shown, therefore, that the district west of the Rocky Mountains was within the boundaries of Louisiana, that circum- stance would in no way assist the claim of the United States.
It may, nevertheless, be worth while to expose, in a few words, the futility of the attempt to include that district within those boundaries.
For this purpose, it is only necessary to refer to the original grant of Louisiana made to De Crozat by Louis XIV., shortly after its discovery by La Salle. That province is therein expressly described as " the country drained by the waters entering, directly or indirectly, into the Mississippi." Now, unless it can be shown that any of the tributaries of the Mississippi cross the Rocky Mountains from west to east, it is difficult to conceive how any part of Louisiana can be found to the west of that ridge.
There remains to be considered the first ground of claim advanced by the United States to the territory in question, namely, that founded on their own proper right as first discoverers and occupiers of that territory.
If the discovery of the country in question, or rather the mere en- trance into the mouth of the Columbia by a private American citizen, be, as the United States assert, (although Great Britain is far from admitting the correctness of the assertion,) a valid ground of national and exclusive claim to all the country situated between the 42d and 49th parallels of latitude, then must any preceding discovery of the same country, by an individual of any other nation, invest such nation with a more valid, because a prior, claim to that country.
Now, to set aside, for the present, Drake, Cook, and Vancouver, who all of them either took possession of, or touched at, various points of the coast in question, Great Britain can show that in 1788-that is, four years before Gray entered the mouth of the Columbia River -Mr. Meares,* a lieutenant of the royal navy, who had been sent by the East India Company on a trading expedition to the north-west coast of America, had already minutely explored that coast, from the 49th degree to the 45th degree north latitude; had taken formal possession of the Straits of De Fuca, in the name of his sovereign ; had purchased land, trafficked and formed treaties with the natives; and had actually entered the bay of the Columbia, to the northern headland of which he gave the name of Cape Disappointment - a name which it bears to this day.
Dixon, Scott, Duncan, Strange, and other private British traders, had also visited these shores and countries several years before Gray ; but the single example of Meares suffices to quash Gray's claim to prior discovery. To the other navigators above mentioned, therefore, it is unnecessary to refer more particularly.
It may be worth while, however, to observe, with regard to Meares, that his account of his voyages was published in London in August, 1790; that is, two years before Gray is even pretended to have entered the Columbia.
To that account are appended, first, extracts from his log-book ; secondly, maps of the coasts and harbors which he visited, in which every
* See p. 177.
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part of the coast in question, including the bay of the Columbia, (into which the log expressly states that Meares entered,) is minutely laid down, its delineation tallying, in almost every particular, with Vancouver's sub- sequent survey, and with the description found in all the best maps of that part of the world, adopted at this moment; thirdly, the account in question actually contains an engraving, dated in August, 1790, of the entrance of De Fuca's Straits, executed after a design taken in June, 1788, by Meares himself.
With these physical evidences of authenticity, it is as needless to contend for, as it is impossible to controvert, the truth of Meares's statement.
It was only on the 17th of September, 1788, that the Washington, commanded by Mr. Gray, first made her appearance at Nootka.
If, therefore, any claim to these countries, as between Great Britain and the United States, is to be deduced from priority of the discovery, the above exposition of dates and facts suffices to establish that claim in favor of Great Britain, on a basis too firmn to be shaken.
It inst, indeed, be admitted that Mr. Gray, finding himself in the bay formed by the discharge of the waters of the Columbia into the Pacific, was the first to ascertain that this bay formed the outlet of a great river - a discovery which had escaped Lieutenant Meares, when, in 1788, four years before, he entered the same bay.
But can it be seriously urged that this single step in the progress of discovery not only wholly supersedes the prior discoveries, both of the bay and the coast, by Lieutenant Meares, but equally absorbs the subse- quent exploration of the river by Captain Vancouver, for near a hundred miles above the point to which Mr. Gray's ship had proceeded, the formal taking possession of it by that British navigator,* in the name of his sovereign, and also all the other discoveries, explorations, and temporary possession and occupation of the ports and harbors on the coast, as well of the Pacific as within the Straits of De Fuca, up to the 49th parallel of latitude ?
This pretension, however, extraordinary as it is, does not embrace the whole of the claim which the United States build upon the limited discovery of Mr. Gray, namely, that the bay of which Cape Disappoint- ment is the northernmost headland, is, in fact, the embouchure of a river. That mere ascertainment, it is asserted, confers on the United States a title, in exclusive sovereignty, to the whole extent of country drained by such river, and by all its tributary streams.
In support of this very extraordinary pretension, the United States allege the precedent of grants and charters accorded in former times to companies and individuals, by various European sovereigns, over several parts of the American continent. Amongst other instances are adduced the charters granted by Elizabeth, James I., Charles II., and George II., to sundry British subjects and associations, as also the grant made by Louis XIV. to De Crozat over the tract of country watered by the Mississippi and its tributaries.
But can suchi charters be considered an acknowledged part of the law of nations ? Were they any thing more, in fact, than a cession to the grantee or grantees of whatever rights the grantor might suppose
* See p. 248.
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himself to possess, to the exclusion of other subjects of the same sov- ereign ? - charters binding and restraining those only who were within the jurisdiction of the grantor, and of no force or validity against the subjects of other states, until recognized by treaty, and thereby becom- ing a part of international law .*
Had the United States thought proper to issue, in 1790, by virtue of their national authority, a charter granting to Mr. Gray the whole extent of country watered, directly or indirectly, by the River Columbia, such a charter would, no doubt, have been valid in Mr. Gray's favor, as against all other citizens of the United States. But can it be supposed that it would have been acquiesced in by either of the powers, Great Britain and Spain, which, in that same year, were preparing to contest by arms the possession of the very country which would have been the subject of such a grant ?
If the right of sovereignty over the territory in question accrues to the United States by Mr. Gray's discovery, how happens it that they never protested against the violence done to that right by the two powers, who, by the convention of 1790, regulated their respective rights in and over a district so belonging, as it is now asserted, to the United States ?
This claim of the United States to the territory drained by the Co- lumbia and its tributary streams, on the ground of one of their citizens having been the first to discover the entrance of that river, has been here so far entered into, not because it is considered to be necessarily entitled to notice, since the whole country watered by the Columbia falls within the provisions of the convention of 1790, but because the doctrine above alluded to has been put forward so broadly, and with such confidence, by the United States, that Great Britain considered it equally due to herself and to other powers to enter her protest against it.
The United States further pretend that their claim to the country in question is strengthened and confirmed by the discovery of the sources of the Columbia, and by the exploration of its course to the sea by Lewis and Clarke, in 1805-6.
In reply to this allegation, Great Britain affirms, and can distinctly prove, that, if not before, at least in the same and subsequent years, her North-Western Trading Company had, by means of their agent, Mr. Thomson, already established their posts among the Flat-head and Koo- tanie tribes, on the head-waters of the northern or main branch of the Columbia, and were gradually extending them down the principal stream of that river ; thus giving to Great Britain, in this particular, again, as in the discovery of the mouth of the river, a title to parity at least, if not priority, of discovery, as opposed to the United States. It was from those posts, that, having heard of the American establishment forming in 1811, at the mouth of the river, Mr. Thomson hastened thither, descending the river, to ascertain the nature of that establishment.t
Some stress having been laid by the United States on the restitution to them of Fort George by the British, after the termination of the last war, which restitution they represent as conveying a virtual acknowledg- ment by Great Britain of the title of the United States to the country in which that post was situated, - it is desirable to state, somewhat in detail, the circumstances attending that restitution.
* See p. 350. t See p. 291, 297.
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In the year 1815, a demand for the restoration of Fort George was first made to Great Britain, by the American government, on the plea that the first article of the treaty of Ghent stipulated the restitution to the United States of all posts and places whatsoever, taken from them by the British during the war, in which description Fort George (Astoria) was included.
For some time the British government demurred to comply with the demand of the United States, because they entertained doubts how far it could be sustained by the construction of the treaty.
In the first place, the trading post called Fort Astoria (or Fort George) was not a national possession; in the second place, it was not a military post ; and, thirdly, it was never captured from the Americans by the British.
It was, in fact, conveyed in regular commercial transfer, and ac- companied by a bill of sale, for a sum of money, to the British company, who purchased it, by the American company, who sold it of their own free will.
It is true that a British sloop of war had, about that time, been sent to take possession of that post, but she arrived subsequently to the trans- action above mentioned, between the two companies, and found the British company already in legal occupation of their self-acquired property.
In consequence, however, of that ship having been sent out with hostile views, although those views were not carried into effect, and in order that not even the shadow of a reflection might be cast upon the good faith of the British government, the latter determined to give the most liberal extension to the terms of the treaty of Ghent, and, in 1818, the purchase which the British company had made in 1813 was restored to the United States .*
Particular care, however, was taken, on this occasion, to prevent any misapprehension as to the extent of the concession made by Great Britain.
Viscount Castlereagh, in directing the British minister at Washington to intimate the intention of the British government to Mr. Adams, then secretary of state, uses these expressions, in a despatch dated 4th of February, 1818 :-
" You will observe, that, whilst this government is not disposed to contest with the American government the point of possession as it stood in the Columbia River at the moment of the rupture, they are not prepared to admit the validity of the title of the government of the United States to this settlement.
" In signifying, therefore, to Mr. Adams the full acquiescence of your government in the reoccupation of the limited position which the United States held in that river at the breaking out of the war, you will at the same time assert, in suitable terms, the claim of Great Britain to that terri- tory, upon which the American settlement must be considered as an encroachment."
This instruction was executed verbally by the person to whom it was addressed.
The following is a transcript of the act by which the fort was delivered up, by the British, into the hands of Mr. Prevost, the Amer- ican agent : -
* See p. 309.
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" In obedience to the command of H. R. H. the prince regent, signified in a despatch from the right honorable the Earl Bathurst, addressed to the partners or agents of the North-West Company, bearing date the 27th of January, 18IS, and in obedience to a subsequent order, dated the 26th July, from W. H. Sheriff, Esq., captain of H. M. ship Andromache, We, the undersigned, do, in conformity to the first article of the treaty of Ghent, restore to the government of the United States, through its agent, J. P. Prevost, Esq., the settlement of Fort George, on the Columbia River.
" Given under our hands, in triplicate, at Fort George, (Columbia River,) this 6th day of October, 1818.
" F. HICKEY, Captain H. M. ship Blossom. " J. KEITH, of the N. W. Co."
The following is the despatch from Earl Bathurst to the partners of the North-West Company, referred to in the above act of cession : -
" DOWNING STREET, 27th January, 1818.
" Intelligence having been received that the United States sloop of war Ontario has been sent by the American government to establish a settlement on the Columbia River, which was held by that state, on the breaking out of the last war, I am to acquaint you, that it is the prince regent's pleasure (without, however, admitting the right of that government to the possession in question) that, in pursuance of the first article of the treaty of Ghent, due facility should be given to the reoccu- pation of the said settlement by the officers of the United States; and I am to desire that you would contribute as much as lies in your power to the execution of his royal highness's commands.
" I have, &c. &c.,
" BATHURST.
" To the Partners or Agents of the North-West Company, residing on the Columbia River."
The above documents put the case of the restoration of Fort Astoria in too clear a light to require further observation.
The case, then, of Great Britain, in respect to the country west of the Rocky Mountains, is shortly this : -
Admitting that the United States have acquired all the rights which Spain possessed, up to the treaty of Florida, either in virtue of discovery, or, as is pretended, in right of Louisiana, Great Britain maintains that the nature and extent of those rights, as well as of the rights of Great Britain, are fixed and defined by the convention of Nootka; that these rights are equal for both parties ; and that, in succeeding to the rights of Spain, under that convention, the United States must also have succeeded to the obligations which it imposed.
Admitting, further, the discovery of Mr. Gray, to the extent already stated, Great Britain, taking the whole line of the coast in question, with its straits, harbors, and bays, has stronger claims, on the ground of prior discovery, attended with acts of occupancy and settlement, than the United States.
Whether, therefore, the United States rest their claims upon the title
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of Spain, or upon that of prior discovery, or upon both, Great Britain is entitled to place her claims at least upon a parity with those of the United States.
It is a fact, admitted by the United States, that, with the exception of the Columbia River, there is no river which opens far into the interior, on the whole western coast of the Pacific Ocean.
In the interior of the territory in question, the subjects of Great Britain have had, for many years, numerous settlements and trading posts - several of these posts on the tributary streams of the Columbia, several upon the Columbia itself, some to the northward, and others to the southward, of that river ; and they navigate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest the sea, and for the shipment of it from thence to Great Britain. It is also by the Columbia and its tributary streams that these posts and settlements receive their annual supplies from Great Britain.
In the whole of the territory in question, the citizens of the United States have not a single settlement or trading post. They do not use that river, either for the purpose of transmitting or receiving any produce of their own, to or from other parts of the world.
In this state of the relative rights of the two countries, and of the relative exercise of those rights, the United States claim the exclusive possession of both banks of the Columbia, and, consequently, that of the river itself; offering, it is true, to concede to British subjects a conditional participation in that navigation, but subject, in any case, to the exclusive jurisdiction and sovereignty of the United States.
Great Britain, on her part, offers to make the river the boundary ; each country retaining the bank of the river contiguous to its own ter- ritories, and the navigation of it remaining forever free, and upon a foot- ing of perfect equality to both nations.
To carry into effect this proposal, on our part, Great Britain would have to give up posts and settlements south of the Columbia. On the part of the United States, there could be no reciprocal withdrawing from actual occupation, as there is not, and never has been, a single American citizen settled north of the Columbia.
The United States decline to accede to this proposal, even when Great Britain has added to it the further offer of a most excellent harbor, and an extensive tract of country on the Straits of De Fuca - a sacrifice tendered in the spirit of accommodation, and for the sake of a final adjustment of all differences, but which, having been made in this spirit, is not to be considered as in any degree recognizing a claim on the part of the United States, or as at all impairing the existing right of Great Britain over the post and territory in question.
Such being the result of the recent negotiation, it only remains for Great Britain to maintain and uphold the qualified rights which she now possesses over the whole of the territory in question. These rights are recorded and defined in the convention of Nootka .* They embrace the right to navigate the waters of those countries, the right to settle in and over any part of them, and the right freely to trade with the inhabitants and occupiers of the same.
These rights have been peaceably exercised ever since the date of
* See considerations on the Nootka convention, at p. 213.
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that convention; that is, for a period of near forty years. Under that convention, valuable British interests have grown up in those countries. It is fully admitted that the United States possess the same rights, although they have been exercised by them only in a single instance, and have not, since the year 1813, been exercised at all. But beyond these rights they possess none.
To the interests and establishments which British industry and enter- prise have created, Great Britain owes protection. That protection will be given, both as regards settlement and freedom of trade and navigation, with every attention not to infringe the coordinate rights of the United States; it being the earnest desire of the British government, so long as the joint occupancy continues, to regulate its own obligations by the same rule which governs the obligations of any other occupying party.
Fully sensible, at the same time, of the desirableness of a more definite settlement, as between Great Britain and the United States, the British government will be ready, at any time, to terminate the present state of joint occupancy by an agreement of delimitation; but such arrangement only can be admitted as shall not derogate from the rights of Great Britain, as acknowledged by treaty, nor prejudice the advantages which British subjects, under the same sanction, now enjoy in that part of the world.
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DOCUMENTS RELATING TO THE HUDSON'S BAY COMPANY.
This company was incorporated by a charter from King Charles II. of England, issued on the 16th of May, 1669; a few extracts from which will be sufficient to show the powers of the company and the extent of its territories under that grant.
(1.)
His Majesty's Royal Charter to the Governor and Company of Hud- son's Bay.
" CHARLES THE SECOND, by the grace of God, king of England, &c., to all to whom these presents shall come, Greeting : Whereas our dearly beloved cousin, Prince Rupert [and seventeen others, whose names and titles follow] have, at their own great cost and charges, undertaken an ex- pedition for Hudson's Bay, in the north-west parts of America, for the dis- covery of a new passage into the South Sea, and for the finding of some trade for furs, minerals, and other considerable commodities ; and by such their undertaking have already made such discoveries as do encourage them to proceed farther in performance of their said design, by means whereof there may probably arise great advantage to us and our kingdoms; and
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whereas the said undertakers, for their further encouragement in the said design, have humbly besought us to incorporate them, and to grant unto them and their successors the whole trade and commerce of all those seas, straits and bays, rivers, lakes, creeks and sounds, in whatsoever lati- tude they shall be, that lie within the entrance of the straits commonly called Hudson's Straits, together with all the lands, countries, and terri- tories, upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks, and sounds, aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any other Christian prince or state; -
" Now, know ye, that we, being desirous to promote all endeavors that may tend to the public good of our people, and to encourage the said undertaking, have, of our especial grace, certain knowledge, and mere motion, given, granted, ratified, and confirmed, and by these presents, for us and our successors, do give, grant, ratify, and confirm, unto our said cousin, Prince Rupert, &c., that they and such others as shall be ad- mitted into the said society, as is hereafter expressed, shall be one body corporate and politic, in deed and in name, by the name of The Governor and Company of Adventurers of England trading into Hudson's Bay,
* * * and at all times hereafter, shall be personable, and capable in law, to have, purchase, receive, possess, enjoy, and retain lands, rents, privileges, liberties, jurisdiction, franchises, and hereditaments, of what kind, nature, or quality soever they be, to them and their successors."
By succeeding sections of the charter, provisions are made-for the election of a governor, a deputy governor, and a committee of seven members, who are to have the direction of all voyages, sales, and other business of the company - for the election of new members - and for holding, at particular periods, a general court of the company. The first company and their successors are made lords proprietors of the territories above mentioned, holding the lands "in free and common socage, and not in capite, or by knights' service;" and they are em- powered to make all laws and regulations for the government of their possessions, which may "be reasonable, and not contrary or repugnant, but as near as may be agreeable, to the laws, statutes, and customs," of England. The whole trade, fishery, navigation, minerals, &c., of the countries, is granted to the company exclusively ; all others of the king's subjects being forbidden to " visit, haunt, frequent, trade, traffic, or adventure," therein, under heavy penalties; and the company is more- over empowered " to send ships, and to build fortifications, for the de- fence of its possessions, as well as to make war or peace with all nations or people, not Christian, inhabiting those territories, which are declared to be thenceforth " reckoned and reputed as one of his majesty's plan- tations or colonies, in America, called Rupert's Land."
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