THE U^' W . ^ 
 
 ITS W -^jJl^^-T ^'^ 
 
 HISTORY AND DISCOYER^^i^^ ^V 
 
 INCLUDING AN ACCOUNT OF "^^ " 
 
 THE CONVENTION OF THE ESCURIAL, 
 
 THE TREATIES AND NEGOTIATIONS 
 
 BETWEEN 
 
 THE UNITED STATES AND GREAT BRITAIN, 
 
 HELD AT VARIOUS TIMES FOR THE SETTLEMENT OF 
 A BOUNDARY LINE. 
 
 AN EXAMINATION OF THE WHOLE QUESTION 
 
 IN RESPECT TO 
 
 FACTS AND THE LAW OF NATIONS. 
 
 'f'ii TR AVERS TWISS, D.C.L., F.R.S., 
 
 PROFESSOR OF POLITICAL ECONOMY IN THE UNIVERSITY OF OXFORD, 
 AND ADVOCATE IN DOCTORS' COMMONS. 
 
 NEW. YORK: 
 
 D. APPLETON & CO., 200 BROADWAY. 
 
 PHILADELPHIA: 
 GEO. S. APPLETON, 148 CHESNUT-STREET. 
 
 CINCINNATI:— DERBY, BRADLEY & CO., 113 MAIN - STREET. 
 3IDCCCXLVI. 
 

 By trauflfer 
 5 Jeld07 
 

 PREFACE. 
 
 The object which the author had in view, in insti- 
 tuting the accompanying inquiry into the historical 
 facts and the negotiations connected with the Oregon 
 Territory, was to contribute, as far as his individual 
 services might avail, to the peaceful solution of the 
 question at issue between the United States of Ameri- 
 ca and Great Britain. He could not resist the convic- 
 tion, on reading several able treatises on the subject, 
 that the case of the United States had been overstated 
 by her writers and negotiators ; and the perusal of Mr. 
 Greenhow's Official Memoir, and subsequent History 
 of Oregon and California, confirmed him in this im- 
 pression, as they sought to establish more than was 
 consistent with the acknowledged difficulty of a ques- 
 tion, which has now been the subject of four fruitless 
 negotiations. He determined, in consequence of this 
 conviction, to investigate carefully the records of an- 
 cient discoveries and other matters of history connected 
 with the North-west coast of America, concerning 
 which much contradictory statement is to be met 
 with in writers of acknowledged reputation. The 
 result is, the present work, which has unavoidably 
 assumed a much larger bulk than was anticipated by 
 
VI PREFACE. 
 
 the author when he commenced the inquiry : it is 
 hoped, however, that the arrangement of the chapters 
 will enable the reader to select, without difficnlty, 
 those portions of the subject which lie may deem to 
 be most deserving of his attention. 
 
 The expeditions of Drake and of Gali have thus 
 necessarily come under consideration ; and the views 
 of the author will be found to differ, in respect to both 
 these navigators, from those advanced by Mr. Green- 
 how, more especially in respect to Drake. Had the 
 autnor noticed at an earlier period Mr. Greenhow's 
 remark in the Preface to the second edition of his His- 
 tory, that he has " never deviated from the rule of not 
 citing authorities at second-hand," he would have 
 thought it right to apologise for attributing the incor- 
 rectness of Mr. Greenhow's statements as to the re- 
 spective accounts of Drake's expedition, to his having 
 been misled by the authority of the article " Drake," 
 in the Biographic Universelle. He would even now 
 apologise, were not any other supposhion under the 
 circumstances less respectful to Mr. Greenhow himself. 
 
 In regard to Juan de Fuca, if the author could have 
 supposed that in the course of the last negotiations at 
 Washington, Mr. Buchanan would have pronounced 
 that De Fuca's Voyage " no longer admits of reason- 
 able doubt," he would have entered into a more care- 
 ful analysis of Michael Lock's tale, to show that it is 
 utterly irreconcileable with ascertained facts. As it is, 
 however, the author trusts that enough has been said 
 in the chapter on the Pretended Discoveries of the 
 North west Coast, to convince the reader that both the 
 
TREFACE. Vll 
 
 stories of Juan de Fuca and Maldonado*, to the latter 
 of whom, Mr. Calhoun, at an earlier stage of the same 
 negotiations, refers by name as the pioneer of Span- 
 ish enterprise, are to be ranked with Admiral Fonte's 
 account, in the class of Mythical discoveries. 
 
 In regard to Vancouver, the author, it is hoped, will 
 be pardoned for expressing an opinion, that Mr. 
 Greenhow has permitted his admitted jealousy for the 
 fame of his fellow-citizens to lead him to do injustice 
 to Vancouver's character, and to assail it with argu- 
 ments founded in one or two instances upon incorrect 
 views of Vancouver's own statements. Mr. Gallatin 
 expressed a very diiferent opinion of this officer, in his 
 Counter-statement, during the negotiation of 1826, 
 when he observes that Vancouver " had too much 
 probity to alter his statement, when, on the ensuing 
 day, he was informed by Captain Gray of the existence 
 of the river, at the mouth of which he had been for 
 several days without being able to enter it." 
 
 The chapter on the Convention of the Escurial is 
 intended to give an outline of the facts and negotia- 
 tions connected with the controversy between Spain 
 and Great Britain in respect to Nootka Sound, and the 
 subsequent settlement of the points in dispute. The argu- 
 ments which the author conceived them to furnish against 
 the positions of the Commissioners of the United States, 
 have been inserted, as the opportunity oifered itself, in 
 the chapters on the several negotiations. The author, 
 
 * Maldonado's pretended Voyage bears the date of 15S8. In the copy of 
 Mr. Calhoun's letter, circulated on this side of the Atlantic, it is referred to 
 the year 1528. 
 
V PREFACE. 
 
 however, has introduced in this chapter, what appears 
 to him to be a coucUisive refutation of Mr. Buchanan's 
 statement, " that no sufficient evidence has been ad- 
 duced that either Nootka Sound, or any other spot on 
 the coast, was ever actually surrendered by Spain to 
 Great Britain." 
 
 The chapter on the Cohimbia River attempts to ad- 
 just the respective claims of Heceta, Gray, and 
 Broughton, to the discovery and exploration of that 
 river. 
 
 A few chapters have been next inserted on points 
 of international law connected with territorial title, 
 which, it was thought, might facilitate the examina- 
 tion of the questions raised in the course of the nego- 
 tiations by the Commissioners of Great Britain and the 
 United States. They do not profess to be complete, 
 but they embrace, it is believed, nearly all that is of 
 importance for the reader to be famihar with. 
 
 The chapters on the Limits of Louisiana, and the 
 Treaty of Washington, were required to elucidate the 
 " derivative title " of the United States. 
 
 If the author could have anticipated the publication 
 of the correspondence between Mr. Pakenham and the 
 Plenipotentiaries of the United States, he would most 
 probably have adopted a different arrangement in his 
 review of the several negotiations, so as to avoid an 
 appearance of needless repetition. His manuscript, 
 however, with the exception of the two last chapters, 
 was completed before the President's message reached 
 this country. As the earlier sheets, however, were 
 passing through the press, one or two remarks have been 
 
PREFACE. ^ IX 
 
 inserted which have a hearing on the recent corres- 
 pondence ; but it should be observed, that a separate 
 review of each negotiation was designedly adopted, for 
 the purpose of enabling the reader to appreciate more 
 readily the variety of phases, which the claims of the 
 United States have assumed in the course of them. 
 
 Some observations have been made in Chapter XII. 
 and other places, upon the general futility of the argu- 
 ment from maps in the case of disputed territory. 
 The late negotiations at Washington have furnished 
 an apposite illustration of the truth of the autlior's re- 
 marks. Mr. Buchanan, towards the conclusion of his 
 last letter to Mr. Pakenham, addressed an argument to 
 the British Minister, of the kind known to logicians as 
 the argumentum ad verecundiam : — " 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 the State, recently received from 
 London, and published by Maltby & Co., manufactur- 
 ers and publishers to ^ The Society for the Diffusion of 
 Useful knowledge,^ which assigns this territory to the 
 United States." The history, however, of this globe 
 is rather curious. It was ordered of Mr. Malby (not 
 Maltby) for the Department of State at Washington, 
 before Mr. Everett quitted his post of Minister of the 
 United States in this country. It no doubt deserves 
 the commendation bestowed upon it by Mr. Buchanan, 
 for Mr. Malby manufactures excellent globes ; but the 
 globe sent to Washington was not made from the plates 
 used on the globes published under the sanction of 
 " The Society for the Diffusion of Useful Knowledge," 
 
X PREFACE. 
 
 tlioiigh this is not said by way of disparagement to it. 
 The Society, in its maps, has carried the boundary Hne 
 west of the Rocky Mountains, along the 49th parallel 
 to the Columbia River, and thence along that river to 
 the sea ; but in its globes the line is not marked beyond 
 the Rocky Mountains. Mr. Malby, knowing that the 
 globe ordered of him was intended for the Department 
 of State at Washington, was led to suppose that it 
 would be more satisfactorily completed, as it was an 
 American order, if he coloured in, for it is not en- 
 graved, the boundary line proposed by the Commission- 
 ers of the United States. The author would apologise 
 for discussing so trifling a circumstance, had not the 
 authorities of the United States considered the fact of 
 sufficient importance to ground a serious argument 
 upon it. 
 
 In conclusion, the Author must beg pardon of the 
 distinguished diplomatists in the late negotiations at 
 Washington, whose arguments he has subjected to 
 criticism, if he has omitted to notice several portions of 
 their statements, to which they may justly attribute 
 great weight. It is not from any want of respect that 
 he has neglected them, but the limits of his work pre- 
 cluded a fuller consideration of the subject. 
 
 London, Jan. 23, 1846. 
 
CONTENTS 
 
 CHAPTER PAOK 
 
 I. The Oregon Territory 13 
 
 II. The Discovery of the North-west Coast of America- 26 
 
 III. The Discovery of the North-west Coast of America - 50 
 
 IV. The pretended Discoveries of the North-west Coast 64 
 V. The Convention of the Escurial - - - - 76 
 
 VI. The Oregon or Columbia River - - - - 94 
 
 VII. The Acquisition of Territory by Occupation - - 111 
 
 VIII. Title by Discovery 115 
 
 IX. Title by Settlement 123 
 
 X. Derivative Title 129 
 
 XI. Negotiations between the United States and Great 
 
 Britain in 1818 141 
 
 XII. The Limits of Louisiana - - - - - 153 
 
 XIII. The Treaty of Washington 162 
 
 XIV. Negotiations between the United States and Great 
 
 Britain in 1823-34 178 
 
 XV. Examination of the Claims of the United States - 189 
 XVI. Negotiations between the United States and Great 
 
 Britain in 1826-27 207 
 
 XVII. Negotiations between the United States and Great 
 
 Britain in 1844-45 - - - - - 224 
 
 XVIII. Review of the General Question - - - - 249 
 
THE OREGON QUESTION. 
 
 CHAPTER I. 
 
 THE OREGON TERRITORY. 
 
 North-west America. — Plateau of Anahuac. — Rocky Mountains. — New- 
 Albion. — New Caledonia. — Oregon, or Oregan, the River of the West. 
 — The Columbia River. — Extent of the Oregon Territory. — The Coun- 
 try of the Columbia. — Opening of the Fur Trade in 1786. — Vancouver. 
 — Straits of Anian. — Straits of Juan de Fuca. — Barclay. — Meares. — 
 The American sloop Washington. — Galiano and Valdes. — Journey of 
 Mackenzie in 1793. — The Tacoutche-Tesse, now Frazer's River. — 
 North-west Company in 1805. — The Hudson's Bay Company in 1670. 
 — The First Settlement of the North-west Company across the Rocky 
 Mountains in 1806, at Frazer's Lake. — Journey of Mr. Thomson, the 
 Astronomer of the North-west Compan}^ down the North Branch of the 
 Columbia River, in 1811. — Expedition of Lewis and Clarke, in 1805. — 
 The Missouri Fur Company, in 1808. — Their First Settlement on the 
 West of the Rocky Mountains. — The Pacific Fur Company, in 1810. — 
 John Jacob Astor, the Representative of it. — Astoria, established in 
 181L — Dissolution of the Pacific Fur Company, in July, 1813. — Trans- 
 fer of Astoria to the North-west Company, by Purchase, in October, 
 1813. — Subsequent Arrival of the British Sloop-of-War, the Racoon. — 
 Name of Astoria changed to Fort George. 
 
 NoRTH-WESTERX AMERICA is divided from the other portions 
 of the continent by a chain of lofty mountains, which extend 
 throughout its entire length in a north-westerly direction, in 
 continuation of the Mexican Andes, to the shores of the Arc- 
 tic Ocean. The southern part of this chain, immediately be- 
 low the parallel of 42° north latitude, is known to the Span- 
 iards by the name of the Sierra Verde, and the central ridge, 
 in continuation of this, as the Sierra de las Grullas ; and by 
 these names they are distinguished by Humboldt in his ac- 
 count of New Spain, (Essai Politique sqr la Nouvelle Espagne, 
 
 3 
 
14 NORTH-WEST AMERICA. 
 
 1. i., c. 3,) as well as in a copy of Mitchell's Map of North 
 America, published in 1834. Mr. Greenhow, in his History 
 of Oregon and California, states that the Anahuac Mountains 
 is " the appellation most commonly applied to this part of the 
 dividing chain extending south of the 40th degree of latitude 
 to Mexico," but when and on what grounds that name has 
 come to be so applied, he does not explain. Anahuac was 
 the denomination before the Spanish conquest of that portion 
 of America which lies between the 14th and 21st degrees of 
 north latitude, whereas the Cordillera of the Mexican Andes 
 takes the name of the Sierra Madre a little north of the par- 
 allel of W, and the Sierra Madre in its turn is connected 
 with the Sierra de las Grullas by an intermediate range, com- 
 mencing near the parallel of 30°, termed La Sierra de los 
 Mimbres. The application, indeed, of the name Anahuac to 
 the entire portion of the chain which lies south of 40°, may 
 have originated with those writers who have confounded 
 Anahuac with New Spain ; but as the use of the word in this 
 sense is incorrect, it hardly seems desirable to adopt an ap- 
 pellation which is calculated to produce confusion, whilst it 
 perpetuates an error, especially as there appear to be no rea- 
 sonable grounds for discarding the established Spanish names. 
 The plateau of Anahuac, in the proper sense of the w^ord, 
 comprises the entire territory from the Isthmus of Panama to 
 the 21st parallel of north latitude, so that the name of Ana- 
 huac Mountains would, with more propriety, be confined to 
 the portion of the Cordillera south of 21°. If this view be 
 correct, the name of the Sierra Verde may be continued for 
 that portion of the central range which separates the head 
 waters of the Rio Bravo del Norte, which flows into the Gulf 
 of Mexico, and forms the south-western boundary of Texas, 
 from those of the Rio Colorado, (del Occidente,) which emp- 
 ties itself into the Gulf of California. 
 
 The Rocky Mountains, then, or, as they are frequently 
 called, the Stony Mountains, will be the distinctive appella- 
 tion of the portion of the great central chain which lies north 
 of the parallel of 42° ; and if a general term should be re- 
 quired for the entire chain to the south of this parallel, it may 
 be convenient to speak of it as the Mexican Cordillera, since 
 it is co-extensive wdth the present territory of the United 
 States of Mexico, or else as the Mexican Andes, since the 
 range is, both in a geographical and a geological point of 
 view, a continuation of the South American Andes, 
 
ROCKY MOUNTAINS. 15 
 
 Between this great chain of mountains and the Pacific 
 Ocean a most ample territory extends, which may be regarded 
 as divided into three great districts. The most southerly of 
 these, of which the northern boundary line was drawn along 
 the parallel of 42°, by the Treaty of Washington in 1819, be- 
 long to the United States of Mexico. The most northerly, 
 commencing at Behring's Straits, and of which the extreme 
 southern limit was fixed at the southernmost point of Prince 
 of Wales's Island in the parallel of 54° 40' north, by treaties 
 concluded between Russia and the United States of America 
 in 1824, and between Russia and Great Britan in 1825, forms 
 a part of the dominions of Russia ; whilst the intermediate 
 country is not as yet under the acknowledged sovereignty of 
 any power. 
 
 To this intermediate territory different names have been 
 assigned. To the portion of the coast between the parallels 
 of 43° and 48°, the British have applied the name of New 
 x\lbion, since the expedition of Sir Francis Drake in 1578-80, 
 and the British Government, in the instructions furnished by 
 the Lords of the Admiralty, in 1776, to Captain Cook, directed 
 him " to proceed to the coast of New Albion, endeavouring to 
 fall in with it in the latitude of 45°. (Introduction to Captain 
 Cook's Voyage to the Pacific Ocean, 4to, 1784, vol. i., p. 
 xxxii.) At a later period, Vancouver gave the name of New 
 Georgia to the coast between 45° and 50°, and that of New 
 Hanover to the coast between 50° and 54° ; whilst to the entire 
 country north of New Albion, between 48° and 56° 30', from 
 the Rocky Mountains to the sea, British traders have given 
 the name of New Caledonia, ever since the North-west Com- 
 pany formed an establishment on the western side of the 
 Rocky Mountains, in 1806. (Journal of D. W. Harmon, 
 quoted by Mr. Greenhow, p. 291.) The Spanish government, 
 on the other hand, in the course of the negotiations with the 
 British government which ensued upon the seizure of the 
 British vessels in Nootka Sound, and terminated in the Con- 
 vention of the Escurial, in 1790, designated the entire terri- 
 tory as " the Coast of California, in the South Sea." (Decla- 
 ration of His Catholic Majesty, June 4th, transmitted to all 
 the European Courts, in the Annual Register, 1790.) Of 
 late it has been customary to speak of it as the Oregon terri- 
 tory, or the Columbia River territory, although some writers 
 confine that term to the region watered by the Oregon, or 
 Columbia River, and its tributaries. 
 
16 OKEOON, OR OREGAN. 
 
 The authority for the use of the word Oregon, or, more pro- 
 perly speaking, Oregan, has not been clearly ascertained, but 
 the majority of writers agree in referring the introduction of 
 the name to Carver's Travels. Jonathan Carver, a native of 
 Connecticut and a British subject, set out from Boston in 
 1766, soon after the transfer of Canada to Great Britain, on 
 an expedition to the regions of the Upper Mississippi, with 
 the ultimate purpose of ascertaining "the breadth of that vast 
 continent, which extends from the Atlantic to the Pacific 
 Ocean, in its broadest part, between 43° and 46° of north 
 latitude. Had I been able," he says, " to accomplish this 
 task, I intended to have proposed to government to establish 
 a post in some of those parts, about the Straits of Anian, which 
 having been discovered by Sir Francis Drake, of course be- 
 long to the English." The account of his travels, from the 
 introduction to which the above extract in his own words is 
 quoted, was published in London in 1778. Carver did not 
 succeed in penetrating to the Pacific Ocean, but he first made 
 known, or at least esta1)lished a belief in, the existence of a 
 great river, termed apparently, by the nations in the interior, 
 Oregon, or Oregan, the source of which he placed not far from 
 the head waters of the River Missouri, "on the other side of 
 the summit of the lands that divide the waters which run into 
 the Gulf of Mexico from those which fall into the Pacific 
 Ocean." He was led to infer, from the account of the na- 
 tives, that this " Great River of the West" emptied itself near 
 the Straits of Anian, (Carver's Travels, 3d edit., London, 1781, 
 p. 542,) although it may be observed that the situation of the 
 so-called Straits of Anian themselves was not at this time ac- 
 curately fixed. Carver, however, was misled in this latter 
 respect, but the description of the locality where he placed the 
 source of the Oregon, seems to identify it either with the Flat- 
 bow or M'Gillivray's River, or else, and perhaps more pro- 
 bably, with the Flathead or Clark's River, each of which 
 streams, afler pursuing a north-western course from the base 
 of the Rocky Mountains, unites with a great river coming 
 from the north, which ultimately empties itself into the Pacific 
 Ocean in latitude 46° 18'. The name of Oregon has conse- 
 quently been perpetuated in this main river, as being really 
 " the Great River of the West," and by this name it is best 
 known in Europe ; but in the United States of America, it is 
 now more frequently spoken of as the Columl)ia River, from 
 the name of the American vessel, " Tho Columbia," which 
 
EXTENT OF OREGON. 17 
 
 first succeeded in passing the bar at its mouth in 1792. The 
 native name, however, will not totally perish in the United 
 States, for it has been embalmed in the beautiful verse of 
 Bryant, whom the competent judgment of Mr. Washington 
 Irving has pronounced to be amongst the most distinguished 
 of American poets : — 
 
 " Take the wings 
 Of morning, and the Barcan desert pierce, 
 Or lose thyself in the continuous woods 
 Where rolls the Oregon, and hears no sound 
 Save his own dashings." 
 
 If we adopt the more extensive use of the term Oregon ter- 
 ritory, as applied to the entire country intermediate between 
 the dominions of Russia and Mexico respectively, its bounda- 
 ries will be the Rocky Mountains on the east, the Pacific 
 Ocean on the west, the parallel of 54° 40' N. L. on the north, 
 and that of 42° N. L. on the south. Its length will thus com- 
 prise 12 degrees 40 minutes of latitude, or about 760 geo- 
 graphical miles. Its breadth is not so easily determined, as 
 the Rocky Mountains do not run parallel with the coast, but 
 trend from south-east to north-west. The greatest breadth, 
 however, appears to comprise about 1 4 degrees of longitude, 
 and the least about 8 degrees ; so that we may take 11 de- 
 grees, or 660 geographical miles, as the average breadth. 
 The entire superficies would thus amount to 501,600 geo- 
 graphical square miles, equal to 663,366 English miles. If, 
 on the other hand, we adopt the narrower use of the term, 
 and accept the north-western limit which Mr. Greenhow, in 
 his second edition of his History of Oregon and California, 
 has marked out for " the country of the Columbia," namely, 
 the range of mountains which stretches north-eastward from 
 the eastern extremity of the Straits of Fuca, about 400 miles, 
 to the Rocky Mountains, separating the waters of the Colum- 
 bia from those of Frazer's river, it will still include, upon his 
 authority, not less than 400,000 square miles in superficial 
 extent, v/hich is more than double that of France, and nearly 
 half of all the states of the Federal Union. "Its southern- 
 most points" in this limited extent " are in the same latitudes 
 with Boston and with Florence ; whilst its northernmost cor- 
 respond with the northern extremities of Newfoundland, and 
 with the southern shores of the Baltic Sea." 
 
 Such are the geographical limits of the Oregon territory, in 
 its widest. and in its narrowest extent. The Indian hunter 
 
18 FUR TRADE. 
 
 roamed throughout it, undisturbed by civilised man, till near 
 the conclusion of the last century, when Captain James King, 
 on his return from the expedition which proved so ftital to 
 Captain Cook, made known the high prices which the furs of 
 the sea otter commanded in the markets of China, and there- 
 by attracted the attention of Europeans to it. The enter- 
 prise of British merchants was, in consequence of Captain 
 King's suggestion, directed to the opening of a fur trade be- 
 tween the native hunters along the north-west coast of Ame- 
 rica, and the Chinese, as early as 1786. The attempt of the 
 Spaniards to suppress this trade by the seizure of the vessels 
 engaged in it, in 1789, led to the dispute between the crowns 
 of Spain and Great Britain, in respect of the claim to exclu- 
 sive sovereignty asserted by the former power over the port 
 of Nootka and the adjacent latitudes, which was brought to a 
 close by the Convention of the Escurial in 1790. 
 
 The European merchants, however, who engaged in this 
 lucrative branch of commerce, confined their visits to stations 
 on the coasts, where the natives brought from the interior the 
 produce of their hunting expeditions ; and even in respect of 
 the coast itself, very little accurate information was possessed 
 by Europeans, before Vancouver's survey. Vancouver, as is 
 well known, was despatched in 1791 by the British govern- 
 ment to superintend, on the part of Great Britain, the execu- 
 tion of the Convention of the Escurial, and he was at the 
 same time instructed to survey the coast from 35° to 60°, with 
 a view to ascertain in what parts civilised nations had made 
 settlements, and likewise to determine whether or not any 
 effective water communication, available for commercial pur- 
 poses, existed in those parts between the Atlantic and Pacific 
 Oceans. 
 
 The popular belief in the existence of a channel, termed 
 the Straits of xVnian, connecting the waters of the Pacific with 
 those of the Atlantic Ocean, in about the 58th or 60th parallel 
 of latitude, through which Caspar de Cortereal, a Portuguese 
 navigator, was reported to have sailed in 1500, had caused 
 many voyages to be made along the coast on either side of 
 North America during the 16th and 17th centuries, and the 
 exaggerated accounts of the favouralde results of these 
 voyages had promoted the progress of geograj)hical discovery 
 by stimulating fresh expeditions. In the I7th century, a nar- 
 rative was published ])y Purchas, in his " Pilgrims," profess- 
 ing that a Greek pilot, commonly called Juan de Fuca, in the 
 
STRAITS OF JUAN DE FUCA. 19 
 
 service of the Spaniards, had informed Michael Lock the 
 elder, whilst he was sojourning at Venice in 1596, that he 
 had discovered, in 1592, the outlet of the Straits of Anian, in 
 the Pacific Ocean, between 47° and 48°, and had sailed 
 through it into the North Sea. The attention of subsequent 
 navigators was for a long time directed in vain to the redis- 
 covery of this supposed passage. The Spanish expedition un- 
 der Heceta, in 1775, and the British under Cook, in 1778, had 
 both equally failed in discovering any corresponding inlet in 
 the north-west coast, doubtless, amongst other reasons, be- 
 cause it had been placed by the author of the tale between 
 the parallels of 47° and 48°, where no strait existed. In 
 1787, however, the mouth of a strait was descried a little fur- 
 ther northward, between 48° and 49°, by Captain Barclay, of 
 the Imperial Eagle, and the entrance was explored in the 
 following year by Captain Meares, in the Felice, who per- 
 petuated the memory of Michael Lock's Greek pilot, by giv- 
 ing it the name of the Straits of Juan de Fuca. Meares, in 
 his observations on a north-west passage, p. Ivi., prefixed to 
 his Voyage, published in 1790, states that the American mer- 
 chant sloop the Washington, upon the knowledge which he 
 communicated, penetrated the straits of Fuca in the autumn 
 of 1789, "as far as the longitude of 237° east of Greenwich," 
 (123° west,) and came out into the Pacific through the passage 
 north of Queen Charlotte's Island. Vancouver's attention 
 was directed, in consequence of Captain Meares' report, to 
 the especial examination of this strait, and it was surveyed 
 by him, with the rest of the coast, in a most complete and 
 effectual manner. A Spanish expedition, under Galiano and 
 Valdes, was engaged about the same time upon the same ob- 
 ject, so that from this period, i. e., the concluding decade of the 
 last century, the coast of Oregon may be considered to have 
 been sufficiently well known. 
 
 The interior, however, of the country, had remained hither- 
 to unexplored, and no white man seems ever to have crossed 
 the Rocky Mountains prior to Alexander Mackenzie, in 1793. 
 Having ascended the Unjigah, or Peace River, from the Atha- 
 basca Lake, on the eastern side of the Rocky Mountains, to 
 one of its sources in 54° 24', Mackenzie embarked upon a 
 river flowing from the western base of the mountains, called, 
 by the natives, Tacoutche-Tesse. This was generally sup- 
 posed to be the northernmost branch of the Columbia river, 
 till it was traced, in 1812, to the Gulf of Georgia, where it 
 
20 ^•01lTH-WEST COMl'AKY. 
 
 empties itself in 49° latitude, and was thenceforth named Fra- 
 zer's river. Mackenzie, having descended this river for about 
 250 miles, struck across the country westward, and reached 
 the sea in 52° 20', at an inlet which had been surveyed a 
 short time before by Vancouver, and had been named by him 
 Cascade Canal. Xliis icas the first exj)edi(lon of civilised men 
 through the country west of the Rochj Mountains. It did not 
 lead to any immediate result in the way of settlement, though 
 it paved the way by contributing, in conjunction with Van- 
 couver's survey, to confirm the conclusion at which Captain 
 Cook had arrived, that the American continent extended, in 
 an uninterrupted line, north-westward to Behring's Straits. 
 
 The result of Mackenzie's discoveries was to open a wide 
 field to the westward for the enterprise of British merchants 
 engaged in the fur trade ; and thus we find a settlement in 
 this extensive district made, not long after the publication of 
 his voyage, by the agents of the North-west Company. This 
 great association had been growing up since 1784, upon the 
 wreck of the French Canadian fur trade, and gradually ab- 
 sorbed into itself all the minor companies. It did not, how- 
 ever, obtain its complete organisation till 1805, when it soon 
 became a most formidable rival to the Hudson's Bay Com- 
 pany, which had been chartered as early as 1670, and had all 
 but succeeded in monopolising the entire fur trade of North 
 America, after the transfer of Canada to Great Britain. Th© 
 Hudson's Bay Company, with the characteristic security of a 
 chartered company, had confined their posts to the shores of 
 the ample territory which had been granted to them by the 
 charter of Charles II., and left the task of procuring furs to 
 the enterprise of the native hunters. The practice of the 
 hunters was to suspend their chase during the summer months, 
 "when the fur is of inferior quality, and the animals rear their 
 young, and to descend by the lakes and rivers of the interior 
 to the established marts of the company, with the produce of 
 the past winter's campaign. The North-west Company 
 adopted a totally different system. They dispatched their 
 servants into the very recesses of the wilderness, to bargain 
 with the native hunters at their homes. They established 
 wintering partners in the interior of the country, to superin- 
 tend the intercourse with the various tribes of Indians, and 
 employed at one time not fewer than 2,000 voijageurs or boat- 
 men. The natives being thus no longer called away from 
 their pursuit of the beaver and other animals, by the neces- 
 
3IK. Thomson's mission. 21 
 
 sity of resorting as heretofore to the factories of the Hudson's 
 Bay Company, continued on their hunting grounds during the 
 whole year, and were tempted to kill the cub and full-grown 
 animal alike, and thus to anticipate the supply of future years. 
 As the nearer hunting grounds became exhausted, the jSlorth- 
 west Company advanced their stations westwardly into re- 
 gions previously unexplored, and, in 3 806, they pushed for- 
 ward a post across the Rocky Mountains, through the passage 
 where the Peace River descends through a deep chasm in the 
 chain, and formed a trading establishment on a lake now 
 called Frazer's Lake, situated in 54° N. L. " This,^' accord- 
 ing to Mr. Greenhow, " was the first settlement or 'post of any 
 kind made bi/ British subjects west of the Rocky Mountains. '' 
 It may be observed, likewise, that it was the first settlement 
 made on the west of the Rocky Mountains, by civilised men. 
 It is from this period, according to Mr. Harmon, who was a 
 partner in the company, and the superintendent of its trade 
 on the western side of the Rocky Mountains, that the name 
 of New Caledonia had been used to designate the northern 
 portion of the Oregon territory. 
 
 Other posts were soon afterwards formed amongst the Flat, 
 head and Kootanie tribes on the head waters or main branch 
 of the Columbia; and Mr. David Thomson, the astronomer 
 of the North-west Company, descended with a party to the 
 mouth of the Columbia in 1811. Mr. Thomson's mission, 
 according to Mr. Greenhow, was expressly intended to an- 
 ticipate the Pacific Fur Company in the occupation of a post 
 at the mouth of the Columbia. Such, indeed, may have been 
 the ultimate intention, but the survey of the banks of the 
 river, and the establishment of posts along it, was no less the 
 object of it. Mr. Thomson was highly competent to con- 
 duct such an expedition, as may be inferred from the fact that 
 he had been employed in 1798 to determine the latitude of 
 the northernmost source of the Mississippi, and had on that 
 occasion shown the impossibility of drawing the boundary 
 line betv/een the United States of America and Canada, due 
 west from the Lake of the Woods to the Mississippi, as had 
 been stipulated in the second article of the treaty of 1783. 
 Mr. Thomson and his followers were, according to Mr. Green- 
 how, the first ichite persons u-ho navigated the northern branch 
 of the Columbia, or traversed any part of the country drained 
 by it. 
 
 ' The ITnited States of America had, in the mean time, not 
 
 2* 
 
22 UNITED states' EXPEDITION. 
 
 remained inattentive to their own future commercial interests 
 in this quarter, as they had despatched from the southern side 
 an exphjring party across the Rocky Mountains, almost imme- 
 diately after their purchase of Louisiana, in 1803. On this 
 occasion, Mr. Jefferson, then President of the United States, 
 commissioned Captains Lewis and Clarke " 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 Colo- 
 rado, or any other, which might offer the most direct and 
 practicable water communication across the continent for the 
 purposes of commerce." The party succeeded in passing the 
 Rocky Mountains towards the end of September, 1805, and 
 after following, by the advice of their native guides, the Koos- 
 kooskee River, which they reached in the latitude 43° 34', to 
 its junction with the principal southern tributary of the Great 
 River of the West, they gave the name of Lewis to this tribu- 
 tary. Having in seven days afterwards reached the main 
 stream, they traced it down to the Pacific Ocean, where it 
 was found to empty itself, in latitude 46° 18'. They thus 
 identified the Oregon, or Great River of the West of Carver, 
 with the river to whose outlet Captain Gray had given the 
 name of his vessel, the Columbia, in 1792 ; and having passed 
 the winter amongst the Clatsop Indians, in an encampment 
 on the south side of the river, not very far from its mouth, 
 which they called Fort Clatsop, they commenced, with the 
 approach of spring, the ascent of the Columbia on their re- 
 turn homeward. After reaching the Kooskooskee, they pur- 
 sued a course eastward till they arrived at a stream, to which 
 they gave the name of Clarke, as considering it to be the up- 
 per part of the main river, which they had previously called 
 Clarke at its confluence with the Lewis. Here they separated, 
 at about the 47th parallel of latitude. Captain Lewis then 
 struck across the country, northwards, to the Rocky Moun- 
 tains, and crossed them, so as to reach the head waters of 
 the Maria River, which empties itself into the Missouri just 
 Ijclow the Falls. Captain Clarke, on the other hand, followed 
 the Clarke River towards its sources, in a southward direc- 
 tion, and then crossed through a gap in the Rocky Mountains, 
 so as to descend the Yellowstone River to the Missouri. Roth 
 parties united once more on tlie l)anks of the Missouri, and 
 arrived in safety at St. Louis in Sej)tember, 180(). 
 
 The reports of this expedition seem to have first directed 
 
MISSOURI FUR COMPANY. 23 
 
 the attention of traders in the United States to the hunting 
 grounds of Oregon. The Missouri Fur Company was formed 
 in 1808, and Mr. Henry, one of its agents, established a trad- 
 ing post on a branch of the Lewis River, the great southern 
 arm of the Columbia. This seems to have been the earliest es- 
 tahlishment of any kind made hy citizens of the United States 
 west of the Rocky Mountains, The hostility, however, of the 
 natives, combined with the difficulty of procuring supplies, ob- 
 liged Mr. Henry to abandon it in 1810. The Pacific Fur 
 Company was formed about this time at New- York, with the 
 object of monopolising, if possible, the commerce in furs be- 
 tween China and the north-west coast of America. The head 
 of this association was John Jacob Astor, a native of Heidel- 
 berg, who had emigrated to the United States, and had there 
 amassed very considerable wealth by extensive speculations 
 in the fur trade. He had already obtained a charter from the 
 Legislature of New- York in 1809, incorporating a company, 
 under the name of the American Fur Company, to compete 
 with the Mackinaw Company of Canada, within the Atlantic 
 States, of which he was himself the real representative, ac- 
 cording to his biographer, Mr. Washington Irving, his board 
 of directors being merely a nominal body. In a similar man- 
 ner, Mr. Astor himself writes to Mr. Adams in 1823, (Letter 
 from J. J. Astor, of New- York, to the Hon. J. Q. Adams, 
 Secretary of State of the United States, amongst the proofs and 
 illustrations in the appendix to Mr. Greenhow's work,) "You 
 will observe that the name of the Pacific Fur Company is 
 made use of at the commencement of the arrangements for 
 this undertaking. I preferred to have it appear as the busi- 
 ness of a company rather than of an individual, and several 
 of the gentlemen engaged, Mr. Hunt, Mr. Crooks, Mr. 
 M'Kay, M'Dougal, Stuart, &c., Avere in effect to be interested 
 as partners in the undertaking, so far as respected the profit 
 which might arise, but the means were furnished by me, and 
 the property w^as solely mine, and I sustained the loss." Mr. 
 Astor engaged, on this understanding, nine partners in his 
 scheme, of whom six were Scotchmen, who had all been in 
 the service of the North-west Company, and three were citi- 
 zens of the United States. He himself had become natural- 
 ised in the United States, but of his Scotch partners the three 
 at least who first joined him seem to have had no intention of 
 laying aside their national character, as, previously to signing, 
 ill 1810, -the articles of agreement with Mr. Astor, they obtain- 
 
24 
 
 ASTORIA. 
 
 ed from Mr. Jackson, the British Minister at Washington, an 
 assurance that " in case of a war between the two nations, 
 they would be respected as British subjects and merchants." 
 
 Mr. Astor, having at hist arranged his plans, despatched in 
 September, 1810, four of his partners, with twenty-seven sub- 
 ordinate officers and servants, ail British sulijects, in the ship 
 Tonquin, commanded by Jonathan Thorne, a lieutenant in 
 the United States navy, to establish a settlement at the mouth 
 of the Columbia river. They arrived at their destination in 
 March, 1811, and erected in a short time a factory or fort on 
 the south side of the river, about ten miles from the mouth, to 
 which the name of Astoria was given. The Tonquin pro- 
 ceeded in June on a trading voyage to the northward, and was 
 destroyed with her crew by the Indians in the Bay of Clyo- 
 quot, near the entrance of the Strait of Fuca. 
 
 In the following month of July, Mr. Thomson, the agent of 
 the North-west Company, to whom allusion has already been 
 made, descended the northern branch. of the Columbia, and 
 visited the settlement at the mouth of the Columbia. He was 
 received with friendly hospitality by his old companion, Mr. 
 M'Dougal, who was the superintendent, and shortly took his 
 departure again, Mr. Stuart, one of the partners, accompany- 
 ing him up the river as far as its junction with the Okinagan, 
 where he remained during the winter, collecting furs from 
 the natives. The factory at Astoria, in the mean time, was 
 reinforced in January, 1812, by a further detachment of per- 
 sons in the service of the Pacific Fur Company, who had set 
 out overland early in 1811, and after sufibring extreme hard- 
 ships, and losing several of their number, at last made their 
 way, in separate parties, to the mouth of the Columljia. A 
 third detachment was brought by the ship Beaver, in the fol- 
 lowing May. All the partners of the Company, exclusive of 
 Mr. Astor, had now been despatched to the scene of their 
 future trading operations. Mr. Mackay, who had accompa- 
 nied Mackenzie in his expedition to the Pacific in 1793, was 
 alone wanting to their number : he had unfortunately proceed- 
 ed northwards with Captain Thorne, in order to make ar- 
 rangements with the Russians, and was involved in the com- 
 mon fate of the crew of the Tonquin. 
 
 The circumstances, however, of this estal^lishment under- 
 went a great change upon the declaration of war by the Unit- 
 ed States against Great Britain in June, 1812. Tidings of 
 this event reached the factory in January, 1813. In the mean 
 
DISSOLUTION OF THE C03IPANY. 25 
 
 time Mr. Hunt, the chief agent of the Company, had sailed 
 from Astoria, in the ship Beaver, in August, 1812, to make 
 arrangements for the trade along the northern coast ; whilst 
 Mr. IM'Dougal, the senior partner, with Mr. Mackenzie and 
 others, superintended the factory. They were soon informed 
 of the success of the British arms, and of the blockade of the 
 ports of the United States, by Messrs. M'Tavish and Laroque, 
 partners of the North-w^est Company, who visited Astoria 
 early in 1813, with a small detachment of persons in the em- 
 ployment of that company, and opened negotiations with 
 M'Dougal and Mackenzie for the dissolution of the Pacific Fur 
 Company, and the abandonment of the establishment at Asto- 
 ria. The association was in consequence formally dissolved 
 in July, 1813 ; and on the 16th of October following, an 
 agreement was executed between Messrs. M'Tavish and 
 John Stuart, on the part of the North-west Company, and 
 Messrs. M'Dougal, Mackenzie, David Stuart, and Clarke, on 
 the part of the Pacific Fur Company, by which all the estab- 
 lishments, fuis, and stock in hand of the late Pacific Fur Com- 
 pany were transferred to the North-west Company, at a given 
 valuation, which produced, according to Mr. Greenhow, a 
 sum total of 58,000 dollars. It may be observed, that four 
 partners only of the Pacific Fur Company appear to have been 
 parties to this agreement ; but they constituted the entire 
 body which remained at Astoria, Mr. Hunt, being absent, as 
 already stated, and Messrs Crooks, Maciellan, and R. Stuart, 
 having returned over-land to New- York in the spring of 1813. 
 
 The bargain had hardly been concluded when the British 
 sloop of war, the Racoon, under the command of Capt. Black, 
 entered the Columbia river, with the express purpose of de- 
 stroying the settlement at Astoria ; but the establishment had 
 previously become the property of the North-west Company, 
 and was in the hands of their agents. All that remained for 
 Captain Black to perform, was to hoist the British ensign over 
 the factory, the name of which he changed to Fort George. 
 
 Mr. M'Dougal and the majority of the persons who had 
 been employed by the Pacific Fur Company, passed into the 
 service of the North-west Company ; and the agents of the 
 latter body, with the aid of supplies from England, which ar- 
 rived in 1814, were enabled to extend the field of their opera- 
 tions, and to establi.-;h themselves firmly in the country, un- 
 disturbed by any rivals. 
 
2G 
 
 CHAPTER II. 
 
 ON THE DISCOVERY OF THE NORTH-WEST COAST OF 
 AMERICA. 
 
 Voyage of Francisco dc Ulloa, in 1539. — Cabrillo, in 1512. — Drake, in 
 1577-80. — The Famous Voyage. — The World Encompassed. — Nufio 
 da Silva. — Edward Clifte. — Francis Pretty, not the Author of the Fa- 
 mous Voyage. — Fleurieu. — Pretty the Author of the Voyage of Caven- 
 disli. — Purchas' Pilgrims. — Notes of Fletcher. — World Encompassed, 
 published in 1 G28. — Mr. Grcenhow's Mistake in respect to the World 
 Encompassed and the Famous Voyage. — Agreement between the 
 World Encompassed and the Narrative of Da Silva. — Fletcher's Ma- 
 nuscript in the Sloane Collection of the British Museum. — Furthest 
 Limit soutiiward of Drake's Voyage. — Northern Limit 43'-' and up- 
 wards by the Famous Voyage, 48° by the World Encompassed. — The 
 latter confirmed by Stow, the Annalist, in 1592, and by John Davis, 
 the Navigator, in 1595, and by Sir W. Monson in his Naval Tracts. — 
 Camden's Life of Elizabeth. — Dr. Johnson's Life of Sir F. Drake. — 
 Flcurieu's Introduction to Marchand's Voyage. — Introduction to the 
 Voyage of Galiano and Valdds. — Alexander von Humboldt's New 
 Spain. 
 
 The Spaniards justly lay claim to the discovery of a consi- 
 derable portion of the north-west coast of America. An ex- 
 pedition from Acapulco under Francisco de Ulloa, in 1539, first 
 determined California to be a peninsula, by exploring the 
 CJidf of California from La Paz to its northern extremity. The 
 chart, which Domingo del Castillo, the pilot of Ulloa, drew up 
 as the result of this voyage, differs very slightly, according to 
 Alexander von Humboldt, from those of the present day. Ul- 
 loa subsequently exj)lored the western coast of California. Of 
 the extent of his discoveries on this occasion there are contra- 
 dictory accounts, but the extreme limit assigned to them does 
 not reach further north than (^ape Engano, in 30*^ north lati- 
 tude. 
 
 In the spring of the following year, 1542, two vessels were 
 despatched under Juan Rodriguez Cabrillo from the port of 
 iXavidad. lie examined the coast of California, as far north 
 as 37° 10', when he was driven back by a storm to the is- 
 hmd of tSan Bernardo, in 31^, where he died. Ills pilot, 
 
CABRILLO'S VOYAGE. 27 
 
 Bartoleme Ferrelo. continued his course northwards after the 
 death of his commander. The most northern point of land 
 mentioned in the accounts of the expedition which have been 
 preserved, was Cabo de Fortunas, placed by Ferrelo in 41*^, 
 which is supposed by Mr. Greenhow to have been the head- 
 land in 40° 20', to which the name of C. Mendocino was 
 given, in honor of the viceroy, Mendoza. Other authors, 
 however, whose opinion is entitled to consideration, maintain 
 that Ferrelo discovered Cape Blanco in 43°, to which Van- 
 couver subsequently gave the name of Cape Orford. (Hum- 
 boldt, Essai Politique sur la Nouvelle Espagne, 1. iii., c. viii. 
 Introduccion al Relacion del Viage hecho por las Goletas Su- 
 tily Mexicana en el aiio de 1792.) 
 
 The Bull of Pope Alexander VI., as is well known, gave to 
 Ferdinand and Isabella of Spain all the New World to the 
 westward of a meridian line drawn a hundred leagues west of 
 the x\zores. When England, however, shook ofl'the yoke of 
 the Papacy, she refused to admit the validity of Spanish titles 
 when based only on such concessions. Elizabeth, for in- 
 stance, expressly refused to acknowledge " any title in the 
 Spaniards by donation of the Bishop of Rome, to places of 
 which they were not in actual possession, and she did not un- 
 derstand why, therefore, either her subjects, or those of any 
 other European prince, should be debarred from traffic in the 
 Indies." In accordance with such a policy, Sir Francis 
 Drake obtained, through the interest of Sir Christopher Hat- 
 ton, the vice-chamberlain of the Queen, her approval of an 
 expedition projected by him into the South Sea. He set sail 
 from Plymouth in 1577, passed through the Straits of Magel- 
 lan in the autumn of 1578, and ravaged the coast of Mexico in 
 the spring of 1579. Being justly apprehensive that the Span- 
 iards would intercept him if he should attempt to re-pass Ma- 
 gellan's Straits with his rich booty, and being likewise reluct- 
 ant to encounter again the dangers of that channel, he deter- 
 mined to attempt the discovery of a north-east passage from 
 the South Sea into the Atlantic, by the reported Straits of 
 Anian. 
 
 There are two accounts, professedly complete, of Drake's 
 Voyage. The earliest of these first occurs in Hakluyt's Col- 
 lection of Voyages, published in 1589, and is entitled " The 
 Famous Voyage of Sir Francis Dral^e into the South Sea, and 
 there-hence about the whole Globe of the Earth, begun in the 
 yeere of ©ur Lord, 1577." It was re-published, by Ilakluyt, 
 
28 dijake's voyage. 
 
 with sonic alterations, in his subsequent edition of 1598-lGOO, 
 and may be most readily referred to in the fourth volume of 
 the reprint of this latter edition, published in 1811. The 
 other account is intitled " The World Encompassed by Sir 
 Francis Drake, collected out of the notes of Mr. Francis Flet- 
 cher, Preacher in this employment, and compared with divers 
 others' notes that went in the same Voyage." This work 
 was first published in 1628, by Nicholas Bourne, and " sold 
 at his shop at the Ro3^al Exchange." It appears to have been 
 compiled by Francis Drake, the nephew of the circumnaviga- 
 tor, as a dedication " to the truly noble Robert Earl of War- 
 wick" is prefixed, whh his name attached to it. It will be 
 found most readily in the second volume of the Harleian col- 
 lection of voyages. There are also to be found in Hakluyt's 
 fourth volume, two independent, but unfortunately imperfect, 
 narratives, one by Nuno da Silva, the Portuguese pilot, who 
 was pressed by Sir F. Drake into his service at St. Jago, one 
 of the Cape Verde islands, and discharged at Guatulco, where 
 his account terminates ; the other by Edward Clifie, a mari- 
 ner on board the ship Elizabeth, commanded by Mr. John 
 Winter, one of Drake's squadron, M'hich parted company from 
 him on the west coast of South America, immediately after 
 passing through the Straits of Magellan. The Elizabeth 
 succeeded in re-passing the straits, and arrived safe at Ilfra- 
 combe on June 2d, 1579 ; and Mr. Cliffe's narrative, being 
 confined to the voyage of his own ship, is consequently the 
 least complete of all, in respect to Drake's adventures. 
 
 It is a disputed point, whether Drake, in his attempt to find 
 a passage to the Atlantic, by the north of California, reached 
 the latitude of 48° or 43°. The I'amous Voyage, is the ac- 
 count, on which the advocates for the lower latitude of 43° re- 
 ly. The World Encompassed, supported by Stow the anna- 
 list, and two independent naval authorities, cotemporaries of 
 Sir F. Drake, is quoted in favour of the higher latitude of 4S°. 
 Before examining the interval evidence of the two accounts, 
 it may be as well to consider the authority which is due to 
 them from external circumstances, as Mr. Greenhow's ac- 
 count of the two works is calculated to mislead the judgment 
 of the reader in this respect. 
 
 Mr. Creenhow, (p. 73,) in referring to the Famous Voyage, 
 says that it was " written by Francis Pretty, one of the crew 
 of Drake's vessel, at the request of Ilakluyt, and published by 
 him in 1589. It is a plain and succinct account of what the 
 
"the FA3I0US VOYAGE." 29 
 
 writer saw, or believed to have occurred during the voyage, 
 and bears all the marks of truth and authenticity." 
 
 This statement could not but excite some surprise, as the 
 Famous Voyage has no author's name attached to it, either in 
 the first edition of 1589, or in any of the later editions of Hak- 
 luyt, the more so because Hakluyt himself, in his Address to 
 the favorable reader, prefixed to the edition of 1589, leads us 
 to suppose that he was himself the author of the work. " For 
 the conclusion of all, the memorable voyage of Master Thomas 
 Candish into the South Sea, and from thence about the Globe 
 of the Earth doth satisfie me, and I doubt not but will fully 
 content thee, which as in time it is later than that of Sir F. 
 Drake, so in relation of the Philippines, Japan, China, and the 
 isle of St. Helena, it is more particular and exact ; and there- 
 fore the v/ant of the first made by Sir Francis Drake will be 
 the lesse ; wherem I must confess to have taken more than ordi- 
 7iari/ paines, meaning to have inserted it in this worke ; but be- 
 ing of late (contrary to my expectation,) seriously dealt with- 
 all, not to anticipate or prevent another man's paines and 
 charge in drawing all the services of that worthie knight into 
 one volume, I have yielded unto those my friends which press- 
 ed me in the matter, referring the further knowledge of his 
 proceedings to those intended discourses." 
 
 Hakluyt, however, appears to have had the narrative pri- 
 vately printed, and, contrary to the intention which he enter- 
 tained at the time when he wrote his preface, and compiled 
 his table of contents, and the index of his first edition, in nei- 
 ther of which is there any reference to the Famous Voyage, he 
 has inserted the Famous Voyage between pages 643 and 644, 
 evidently as an interpolation. It is nowhere stated that any 
 copy of this edition exists, in which this interpolation does not 
 occur. It is alluded to by Lowndes in his Bibliographical 
 Manual, vol. ii., p. 853, art. " Hakluyt." It is printed appa- 
 rently on the same kind of paper, with the same kind of ink, 
 and in the same kind of type with the rest of the work, but the 
 signatures at the bottom of the pages, by which term are 
 meant the numbers which are placed on the sheets for the 
 printer's guidance, do not correspond with the general order 
 of the signatures of the work. This fact, combined with the 
 circumstance that the pages are not numbered, furnishes a 
 strong presumption that it was printed subsequently to the 
 rest of the work. On the other hand there is evidence that it 
 was printed to bind up with the rest, from the circumstance 
 
30 FRANCIS PRETTY. 
 
 that at the bottom of the last page the word " Instructions" is 
 printed to correspond with the lirst word at the top of p. G44, 
 being the title of the next treatise — " Instructions given by the 
 Honorable the Lords of the Counsell to Edward Fenton, Esq. 
 for tlie order to be observed in the voyage recommended to 
 him for the East Indies, and Cathay, April 9, 1582." 
 
 It can hardly be doubted that this account is the narrative 
 about which llakluyt himself "had taken more than ordinary 
 paines." Hakluyt, as is well known, was a student of Christ 
 Church, Oxford, who like his imitator Purchas, was imbued 
 with a strong natural bias towards geographical studies, and 
 himself compiled many of the narratives which his collection 
 contained. 
 
 This inference as to the authorship of the Famous Voyage, 
 drawn from the allusion in Hakluyt's preface to the work, will 
 probably appear to many minds more justifiable, if the claim 
 set up in behalf of Francis Pretty can be shown to be utterly 
 without foundation. It may be as well, therefore, to dispose 
 of this at once. What may have been Mr. Greenhow's au- 
 thority it would be difficult to say, though it may be -conjec- 
 tured, from another circumstance which will be stated below, 
 that he has been misled by an incorrect article on Sir Fran- 
 cis Drake in the Biographic Universelle. M. Eyries, the 
 writer of this article, refers to Fleurieu as his authority. Fleu- 
 rieu, however, who was a distinguished French hydrographer, 
 and edited, in Paris, in the year VIII. (1800) a work intitled 
 " Voyage autour du Monde, par Eticnne Marchand," with 
 which he published some observations of his own, intitled 
 " Recherches sur les terres de Drake," enumerates brielly in 
 the latter work the different accounts of Drake's voyage, but 
 he no where mentions the name of the author of the Famous 
 Voyage. Fleurieu's information, indeed, was not in every 
 respect accurate, as he states that the edition of Hakluyt which 
 contained the Famous Voyage " ne parut a Londres qu'en 
 1600." What he says, however, of the author, is comprised 
 in a short note to this effect : — " Le gentilhomme Picard, (em- 
 ploye sur I'escadre de Drake,) auteur de cette relation, en ay- 
 ant remis une copie au Baron de St. Simon, Seigneur de 
 Courtomer, celui-ci engagea Francois de Louvencourt, Seig- 
 neur de Vauchelles, a en faire un extrait en Francais sous le 
 titre do ' le Voyage Curieux faict autour du Monde par Fran- 
 cois Drach, Amiral d'Angleterre,' qui fut imprime chez Ges- 
 selin, Paris, 1627, en Bvo." 
 
"voyage de drach." 31 
 
 It might be supposed from this statement, that the work of 
 M. de Louvencourt would disclose the name of the gentleman 
 of Picardy, who had been the companion of Drake ; but on re- 
 ferring to the edition just cited of the French translation, the 
 only allusion to Drake's companion which is to be found in 
 the work, occurs in a few words forming part of the dedica- 
 tion to M. de St. Simon : — " Or, Monsieur, je le vous dedie, 
 parceque c'est vous que m'aviez donne, m'ayant fait entendre, 
 que vous I'aviez eu d'un de vos sujets de Courtomer, qui a fait 
 le meme voyage avec ce seigneur." Nothing further can 
 safely be inferred from this, than that M. de St Simon receiv- 
 ed the English copy, which M. de Louvencourt made use of, 
 from one of his vassals who had accompanied Drake in his 
 expedition ; but whether this Picard subject of the lord of 
 Courtomer was the author of the narrative, does not appear 
 from the meagre dedication, which seems to have been the 
 basis upon which Fleurieu's statement was founded. 
 
 Fleurieu refers to the Famous Voyage as printed in duode- 
 cimo, in London, in the year 1600. This edition, however, 
 cannot be traced in the catalogue of the British Museum or 
 the Bodleian Library, nor does Watt refer to it in his Biblio- 
 theca Britannica : but Fleurieu may have had authority for his 
 statement, though the size of the edition is at least suspicious. 
 Even the French translation of 1627, of which there was an 
 earlier edition in 1613, apparently unknown to Fleurieu, is in 
 8vo, and an English edition of the Famous Voyage, slightly 
 modified, which was published in London in 1752, and may 
 be found in the British Museum, is a very mean pamphlet, 
 though in 8vo. The separate editions likewise of Drake's 
 other voyages which are to be met with in public libraries 
 are in small quarto, so that there would be no argument from 
 analogy in favor of an edition in 12mo. The fact, however, 
 of its having disappeared, might perhaps be urged as a sign of 
 the insignificance of the edition. 
 
 It is very immaterial, even if Fleurieu has hazarded a hasty 
 statement in respect to there having been a separate edition 
 of the Famous Voyage as early as 1600. Thus much, at least, 
 is certain, that Fleurieu is incorrect in stating that the edition 
 of Hakluyt, in which it was inserted, did not appear before 
 1600 ; for a careful comparison between the French transla- 
 tion, and the respective English editions of 1589 and 1600, 
 furnishes conclusive evidence that M. de Louvencourt's trans- 
 lation was made from the narrative in the edition of 1589. 
 
32 FLEURIEU. 
 
 Two examples will sufTice. The edition of 15S9 gives 55^V 
 degrees of southern latitude, and 42 degrees of northern lati- 
 tude, as the extreme limits of Drake's voyage towards the two 
 poles, "which the French translation follows ; Avhilst the edi- 
 tion of 1600 gives 57 J degrees of southern latitude, and 43 
 degrees of northern latitude, as the southern and northern ex- 
 tremes. There can therefore be little doubt that the work, 
 which M. de Louvencourt translated, was the narrative about 
 which Hakluyt himself had taken no ordinary pains : and 
 which he printed separately from his general collection of 
 voyages, so that it might be circulated privately, though he 
 incorporated it into the work after it was completed. 
 
 So far, indeed, are we from finding any good authority for 
 attributing the authorship of the Famous Voyage of Sir Fran- 
 cis Drake to Francis Pretty, one of his crew, as unhesitatingly 
 advanced by Mr. Greenhow, that, on the contrary there is the 
 strongest negative evidence that it was not written by a per- 
 son of that name, unless we are prepared to admit that there 
 were two individuals of that name, the one a native of Picar- 
 dy, and vassal of the Sieur de Courtomer, the other an English 
 gentleman, " of Ey in SufFolke j" the one a companion of 
 Drake, in his voyage round the world in 1577-90, the other a 
 companion of Cavendish, in his voyage round the world in 
 1586-88 ; the one the author of the Famous Voyage of Sir 
 Francis Drake, the other the writer of the Admirable and Pros- 
 perous Voyage of the Worshipful Master Thomas Candish. 
 
 Hakluyt, in his edition of 1589, gave merely " The Worthy 
 and Famous Voyage of Master Thomas Candishe, made round 
 about the Globe of the Earth in the space of two yeeres, and 
 lesse than two months, begon in the yeere 1586," which is 
 subscribed at the end, "written by N. H. ;" but in his edi- 
 tion of 1600, he published a fuller and more complete narra- 
 tive, entitled, " The Admirable and Prosperous Voyage of the 
 Worshipfull Master Thomas Candish, of Frimley, in the Coun- 
 tie of Suffolke, Esquire, into the South Sea, and from thence 
 round about the circumference of the whole earth ; begun in 
 the yeere of our Lord 1586, and finished 1588. VVritten by 
 Master Francis Pretty, lately of Ey, in Suftblke, a gentleman 
 employed in the same action." The author, in the course of 
 the narrative, styles himself Francis Pretie, and says that he 
 was one of the crew of the " Hugh Gallant, a barke of 40 
 tunnes," which, with the Desire, of 120, and the Content, of 
 00 tons, made up Cavendish's small fleet. This Suftblk gen- 
 
KUJNO DA SILVA. 33 
 
 tleman, for several reasons, could not be the same individual 
 as the Picard vassal of the lord of Courtomer, nor is it proba- 
 ble that he ever formed part of the crew of Drake's vessel in 
 the Famous Voyage, as he no where alludes to the circum- 
 stance, when he speaks of places which Drake visited, nor 
 even when he describes the hull of a small bark, pointed out 
 to them by a Spaniard, whom they had lately taken on board, 
 in the narrowest part of the Straits of Magellan, " which we 
 judged to be a bark called the John Thomas." Now it is 
 contrary to all probability that the writer of this passage 
 should have been one of Drake's crew, for the vessel, whose 
 hull was seen on this occasion, was the Marigold, a bark of 
 50 tons, which had formed one of Drake's fleet of five vessels, 
 and had been commanded by Captain John Thomas, which 
 fact would have been known to one of Drake's companions, 
 who could never have committed so gross a blunder as to con- 
 found the name of the ship Avith the name of the captain. 
 That the circumstances of the loss of the Marigold made no 
 slight impression upon the minds of Drake's companions, is 
 shown from its being alluded to in all the narratives of Nuno 
 da Silva, Clifle, and Fletcher, without exception. 
 
 Drake had succeeded in passing the Straits of Magellan 
 with three of his vessels : the Golden Hind, his own ship ; 
 the Elizabeth, commanded by Captain Winter ; and the Mari- 
 gold, by Captain Thomas. On the 30th of September, 1578, 
 the Marigold parted from them in a gale of wind, and was 
 wrecked in the Straits. On the 7th of October the Elizabeth 
 likewise parted company from the Admiral ; she, however, 
 succeeded in making her way back through the Straits, and 
 arrived safe at Ilfracombe on the 7th of June, 1579. It is 
 singular that, in all the three accounts, which are known to 
 be written by companions of Drake, the separation of the 
 Marigold, as well as of the Elizabeth, is alluded to ; whereas, 
 in the Famous Voyage, there is no allusion to the loss of the 
 Marigold, but only to the separation of the Elizabeth, whose 
 safe arrival in England made the fact notorious. If Hakluyt 
 wrote the Famous Voyage, the general notoriety of the sepa- 
 rate return of the Elizabeth would account for his not over- 
 looking that circumstance, whilst he omitted all allusion to 
 the Marigold, about which his information would be compara- 
 tively imperfect. If one of Drake's own crew was the author, 
 it is difficult to suppose that he would have carefully alluded 
 to " their losing sight of their consort, in which Mr. VtHnter 
 
34 PURCIIAS' PILGRIMS. 
 
 was," who did not perish, and should omit all mention of the 
 loss of the Marigold, which is spoken of in the World Encom- 
 passed " as the sorrowful separation of the Marigold from us, 
 in which was Captain John Thomas, with many others of our 
 dear friends." 
 
 The course of this inquiry seems to justify the followinf^ 
 conclusions : that the " Famous Voyage of Sir Francis Drake" 
 is, strictly speaking, an anonymous work ; that it is very im- 
 probable that it was compiled by one of Drake's crew ; on 
 the contrary, Hakluyt's own preface to his edition of 1589, 
 seems to warrant us in supposing that he had himself been 
 employed in preparing the narrative, which he printed sepa- 
 rately from the rest of his work, but subsequently inserted 
 into it. Hakluyt had most probably procured information 
 from original sources, but he had certainly not access, in 1589, 
 to what he subsequently considered to be more trustworthy 
 sources, for he made various alterations in his narrative, in 
 his edition of 1600. There is assuredly not the slightest 
 ground for attributing it to Francis Pretty ; and if M. Eyries 
 was the originator of this mistake, he must undoubtedly have 
 confounded the Famous Voyage of Drake with the Famous 
 Voyage of Candish. All that can be inferred from M. do 
 Louvcncourt's dedication of his French translation to M. de 
 St. Simon is, that the Lord of Courtomer had received the 
 English original from one of his vassals, who had sailed with 
 Drake ; but the most ingenious interpretation of his words 
 will not warrant us in inferring that the donor was likewise 
 the author of the work. 
 
 It may be not unworthy of remark, that Purchas, in the fifth 
 volume of his Pilgrims, (p. 1181,) gives a list of persons known 
 to the world as the companions of Drake, in which the name 
 of Francis Pretty is not found. " Men noted to have com- 
 passed the world with Drake, which have come to my hands, 
 are Thomas Drake, brother to Sir Francis, Thomas Hood, 
 Thomas Blaccoler, John Grippe, George, a musician. Crane, 
 Fletcher, Gary, Moore, John Drake, John Thomas, Robert 
 Winterly, Oliver, the gunner, &c." It would be a reflection 
 upon the well-known pains-taking research of Purchas, to 
 suppose that he would have omitted from his list the name of 
 the author of the Famous Voyage, had he been really one of 
 Drake's crew. 
 
 The other narrative, which is far more full and complete 
 than the Famous Voyage, is entitled the " World Encom- 
 
"the world encompassed." 35 
 
 passed." It was published under the superintendence of Fran- 
 cis Drake, a nephew of the Admiral, if not compiled by him ; 
 the foundation of it, as stated in the title, seems to have been 
 the notes of Francis Fletcher, the chaplain of Drake's vessel, 
 " compared with divers others' notes that went in the same 
 voyage." Fleurieu, in speaking of this work, says : " Celle- 
 ci est le recit d'un temoin oculaire : et la fonction qu'il rem- 
 plissait a bord du vaisseau amiral pourrait faire prcsumer que, 
 s'il n'etait pas I'homme de la flotte le plus experimente dans 
 I'art de la navigation, du moins il devait etre celui que les 
 etudes exigees de sa profession avaient mis le plus a portee 
 d'acquerir quelques connaissances, et qui pouvait le mieux 
 exprimer ce qu'il avait vu." (Recherches sur les terres aus- 
 trales de Drake, p. 227.) 
 
 Fleurieu, in further illustration of the probable fitness of 
 Fletcher for his task, refers to the excellent account of An- 
 son's Voyages, written by his chaplain, R. Walter, and to the 
 valuable treatise on naval evolutions, compiled by the Jesuit 
 Paul Hoste, the chaplain of Tourville. 
 
 The earliest edition of "The World Encompassed" appeared 
 in 1628, and a copy of this date is to be found in the Bodleian 
 Library, at Oxford. It was printed for Nicholas Bourne, as 
 "the next voyage to that to Nombre de Dios, in 1572, for- 
 merly imprinted." A second edition was printed in 1635, 
 and is in the King's Library at the British Museum. A third 
 edition was published in 1652, and may be found in the Li- 
 brary of the British Museum. It was therefore impossible 
 not to feel surprise at Mr. Greenhow's deliberately stating, 
 that this work was not published before 1652, the more so as 
 Watt, in his Bibliotheca Britannica, refers to the first edition 
 of 1628. It is the coincidence of this second error, w^hich 
 warrants the supposition that Mr. Greenhow has placed too 
 implicit a faith in the writer of the article upon Drake, in the 
 Biographic Universelle. M. Eyries, the author of that article, 
 there writes, " Un autre ouvrage original est celui qui fut 
 compose sur les mcmoires de Francis Fletcher, chapelain sur 
 le vaisseau de Drake. Ces mcmoires furent compares et fon- 
 dus avec ceux de phisieurs autres personnes qui avaient etc 
 employees dans la memo expedition ; le resultat de ce travail 
 paiut sous ce titre : The World Encompassed, by Sir F. 
 Drake, collected out of the notes of Master F. F., preacher in 
 this employment, and others. Londres, 1652, 8vo." There 
 
3G Fletcher's journal. 
 
 is another slight error in this statement, as the work is a 
 small 4to, not an 8vo. 
 
 It has been deemed the more necessary to point out care- 
 fully the errors of Mr. Greenhow, in regard to these two nar- 
 ratives, because he contracts them expressly (p. 74) as " the 
 one proceeding entirely from a person who had accompanied 
 Drake in his expedition, and published in 1539, during the 
 life of the hero ; the other compiled from various accounts, 
 and not given to the world until the middle of the following 
 century." 
 
 In respect to the narrative of the World Encompassed, Mr. 
 Greenhow thus expresses himself: — " It is a long and diffuse 
 account, filled with dull and generally absurd speculations, 
 and containing moreover a number of statements, which are 
 positive and evidently wilfid falsehoods ; yet it contains 
 scarcely a single fact not related in the Famous Voyage, 
 from which many sentences and paragraphs are taken verba- 
 tim, while others convey the same meaning in different terms. 
 The journal, or supposed journal of Fletcher's, remains in 
 manuscript in the British Museum : and from it were derived 
 the false statements above mentioned, according to Barrow, 
 who consulted it." 
 
 Mr. Greenhow's opinion of the length and diffuseness of 
 the narrative, and of the dulness and general absurdity of the 
 speculations, will probably be acquiesced in by those who 
 have read the World Encompassed, but the rest of his obser- 
 vations have been made at random. The World Encom- 
 passed does not profess to be an original work, but to be a 
 compilation from the notes of several who went the voyage. 
 It is therefore highly probable that the compiler had before 
 him " The Famous Voyage " amongst other narratives, and 
 we should be prepared to find many statements alike in the 
 two accounts. But it seems hard to suppose with Mr. Green- 
 how, that, where the World Encompassed differs from the 
 Famous Voyage, the statements are " positive and evidently 
 wilful falsehoods." There are several statements, for in- 
 stance, where the two narratives differ, and where the World 
 Encompassed agrees with Nufio da Silva's account, or with 
 Ciiife's narrative. 
 
 For instance, on the second day after clearing the Straits 
 of Magellan, on Sept. 7th, a violent gale came on from the 
 northeast, which drove Drake's three vessels, the Golden Hind, 
 the Elizabetli, and the Marip^old to the height of 57° south 
 
SOUTHERN TERRA INCOGNITA. 37 
 
 according to Cliffe, and about 200 leagues in longitude west 
 of the strait, according to the Famous Voyage. They could 
 make no head against the gale for three weeks, and during 
 that interval there was an eclipse of the moon, which is alluded 
 to in all the narratives. According to Nufio da Silva, they 
 lay driving about, without venturing to hoist a sail till the last 
 day of September, and about this time lost sight of the Mari- 
 gold. The Elizabeth still kept company with the Golden 
 Hind, but on or before October 7th, Drake's vessel parted 
 from her consort. We now come to a very important event 
 in Drake's voyage, which would seem to be one of the sup- 
 posed " positive and evidently wilful falsehoods," to which 
 Mr. Greenhow alludes. 
 
 The Famous Voyage conducts Sir F. Drake in a continuous 
 course north-westward, after losing sight of the Elizabeth, to 
 the island of Mocha, in 38° 30' south, whereas the World 
 Encompassed says, that " Drake, being driven from the Bay 
 of the Parting of Friends out into the open sea, was carried 
 back again to the southward into 55° south, on which height 
 they found shelter for two days amongst the islands, but were 
 again driven further to the southward, and at length fell in 
 with the uttermost part of land towards the South Pole," in 
 about 56° south. Here Fletcher himself landed, and travelled 
 to the southernmost part of the island, beyond which there was 
 neither continent nor island, but one wide ocean. We altered 
 the name, says Fletcher in his MS. journal, from Terra In- 
 cognita, to Terra nunc bene Cognita. Now this account in 
 the World Encompassed, varying so totally from that in the 
 Famous Voyage, is fully borne out by the positive evidence 
 of Nuno da Silva, who says, that after losing sight of another 
 ship of their com.pany, the Admiral's ship being now left' 
 alone, with this foul weather they ran till they were under 
 57°, where they entered into the haven of an island, and 
 stayed there three or four days. The Famous Voyage would 
 lead the reader to suppose, that after leaving the Bay of Se- 
 vering of Friends, the Elizabeth and Golden Hind were driven 
 in company to 57° 20' south ; but it is altogether contrary to 
 probability that ClifFe should have omitted the fact of the Eli- 
 zabeth having been in company with Drake when he disco- 
 vered the southernmost point of land, had such been the case. 
 The author of the Famous Voyage has evidently mixed up the 
 events of the gale in the month of September with those of 
 the storm after the 8th of October. This is a very striking 
 
38 Fletcher's manuscript. 
 
 instance of the truth of Captain W. Burney's remark, " that 
 the author of the Famous Voyage seems purposely, on some 
 occasions, to introduce confusion as a cloak for ignorance." 
 
 Again, the World Encompassed mentions that Drake was 
 badly wounded in the face with an arrow by the natives in 
 the island of Mocha, about which the Famous Voyage is alto- 
 gether silent, but Nufio da Silva confirms this statement. 
 Other instances might be cited to the like purport. 
 
 Mr. Greenhow, at the end of his note already cited, says, 
 " The journal, or supposed journal of Fletcher, remains in 
 MS. in the British Museum, and from it were derived the 
 false statements above mentioned, according to Barrow, who 
 consulted it." Mr. Greenhow has nowhere particularised 
 what these false statements are, unless he means that the 
 statements are false which are at variance with the Famous 
 Voyage. It is evident, however, that such a view assumes 
 the whole point at issue between the two narratives to be de- 
 cided upon internal evidence in favour of the Famous Voyage, 
 which a careful examination of the two accounts will not 
 justify. 
 
 But it is incorrect to refer to Fletcher's journal, as the 
 source of the assumed false statements in the World Encom- 
 passed. The manuscript to which Captain James Burney 
 refers, in his Voyage of Sir Francis Drake round the world, 
 as " the manuscript relation of Francis Fletcher, minister, in 
 the British Museum," forms a part of the Sloane Collection, 
 in which there is likewise a manuscript of Drake's previous 
 expedition to Nombre de Dios. It is not, however, properly 
 speaking, a MS. of Fletcher's, but a MS. copy of Fletcher's 
 MS. It ])ears upon the fly-leaf the words, " e libris Joh. 
 Conyers, Pharmacopolist, — Memorandum, Hakluyt's Voyages 
 of Fletcher." Its title runs thus: The First Part of the Se- 
 cond Voyage about the World, attempted, contrived, and hap- 
 pily accomplished, to wit, in the time of three years, by Mr. 
 Francis Drake, at her Highness's command, and his company : 
 written and faithfully laid down by Ffrancis Ffletcher, Minis- 
 ter of Christ, and Presbyter of the Gospel, adventurer and 
 traveller in the same voyage." On the second page is a map 
 of England, and above it these words : *' This is a map of 
 England, an exact copy of the original to a hair ; that done 
 by Mr. Ffrancis Ffletcher, in Queen Elizabeth's time ; it is 
 copied by Jo. Conyers, citizen and apothecary of London, to- 
 gether with the rest, and by the same hand, as follows*" 
 
LOSS OF THE MARIGOLD. 39 
 
 The work appears to have been very carefully executed by 
 Conyers, and is illustrated with rude maps and drawings of 
 plants, boats, instruments of music and warfare, strange ani- 
 mals, such aes the Vitulus marinus and others, which are 
 referred to in the text of the MS., opposite to which they are 
 generally depicted, and each is specially vouched to be a faith- 
 ful copy of Fletcher's MS. 
 
 There is no date assigned to Fletcher's own MS., but we 
 might fairly be warranted in referring it to a period almost 
 immediately subsequent to the happy accomplishment of the 
 voyage, from the leader of the company being spoken of as 
 "Mr. Francis Drdke." The Golden Hind reached England 
 in November, 15S0, and Drake was knighted by Queen Eli- 
 zabeth in April, 1581; there was then an interval of four 
 months, during which the circumstances of his voyage and his 
 conduct were under the consideration of the Queen's Council, 
 and Fletcher may have completed his journal before their 
 favourable decision led to Drake's receiving the honour of 
 knighthood. On comparing the World Encompassed with 
 this MS., it will be found that most of the speculations, dis- 
 cussions, and fine writing in the World Encompassed have 
 emanated from the nephew of the hero, or whoever may have 
 been the compiler of the work, and have not been derived 
 from this MS., which is written in rather a sober style, and 
 is much less diffuse than might reasonably be expected. 
 Fletcher's imagination seems certainly to have been much 
 affected by the giant stature of the Patagonians, and by the 
 terrible tempest which dispersed the fleet after it had cleared 
 the Straits of Magellan. In respect to the Patagonians, Cliffe, 
 it must be allowed, says, they were " of a mean stature, well 
 limbed, and of a duskish tawnie or browne colour." On the 
 other hand, Nuiio da Silva says, they were " a subtle, great, 
 and well-formed people, and strong and high of stature." 
 Whichever of the two accounts be the more correct, this cir- 
 cumstance is certain, that four of the natives beat back six of 
 Drake's sailors, and slew with their arrows two of them, the 
 one an Englishman, and the other a Netherlander, so that 
 they could be no mean antagonists. In respect to the tempest, 
 the events of it must have with reason fixed themselves deep 
 into Fletcher's memory, for he writes in his journal, " About 
 which time the storm being so outrageous and furious, the 
 barke Marigold, wherein Edward Bright, one of the accusers 
 of Thomas Doughty, was captain, with 23 souls, was swal- 
 
40 NORTHERN LIMIT OF DRAKe's VOYAGE. 
 
 lowed up, which chanced in the second watch of the night, 
 wherein myself and John Brewer, our trumpeter, being watch, 
 did hear their fearful cries continued without hope, dic." 
 
 There is a greater discrepancy between the Famous Voy- 
 age and the World Encompassed, as to the furthest limit of 
 Drake's expedition to the north of the equator, than, as already 
 shown, in regard to the southern limit. We have here, un- 
 fortunately, no independent narrative to appeal to in support 
 of either statement, as the Portuguese pilot was dismissed by 
 Drake at Guatulco, and did not accompany him further. 
 Hakluyt himself does not follow the same version of the story 
 in the two editions of his narrative. In the Famous Voyage, 
 as interpolated in the edition of 1589, he gives 55 J° south, 
 as the furthest limit southward ; but in the edition of 1600, 
 he gives 57^° ; in a similar manner we find 42° north, as 
 the highest northern limit mentioned in the edition of 1589, 
 whilst in that of 1600 it is extended to 43°. Hakluyt thus 
 seems to have found that his earlier information was not to be 
 implicitly relied upon, but we have no clew to the fresh 
 sources to which he had at a later period found access. The 
 World Encompassed, on the other hand, continues Drake's 
 course up to the 48th parallel of north latitude. The two 
 narratives, however, do not appear to be altogether irrecon- 
 cileable. In the Famous Voyage, as amended in the edition 
 of 1600, we have this statement: — "We ♦herefore set sail, 
 and sayled (in longitude) 600 leagues a\. least for a good 
 winde, and thus much we sayled from the 16 of April till the 
 3 of June. The 5 day of June, being in 43 degrees towards 
 the pole arcticke, we found the ayre so colde that our men, 
 being greevously pinched with the same, complained of the 
 extremitie thereof, and tlie further we went, the more the cold 
 increased upon us. Whereupon we thought it best for that 
 time to seek the land, and did so, 'finding it not mountainous, 
 but low plaine land, till we came within 38 degrees towards 
 the line. In which height it pleased God to send us into a 
 faire and good baye, with a good winde to enter the same." 
 
 It will be seen from this account, that it was in the 43d, 
 or, as in the earlier edition of 1589, the 4'2d parallel of north 
 lat., that the cold was first felt so intensely by Drake's crew, 
 and that the further they went, the more the cold increased 
 upon them ; so that from the latter passnge it may )»e inferred 
 that they did not discontinue their course at once as soon as 
 they reached the 43d parallel. 
 
MR. GREENIIOW'S OBJECTIONS. 41 
 
 It appears, likewise, that Drake, from the nature of the 
 wind, was obliged to gain a considerable offing, before he 
 could stand towards the northward : 600 leagues in longitude, 
 according to the first edition (the second edition omitting the 
 words ' in longitude,') which does not differ much from the 
 World Encompassed. The latter states — "From Guatulco, 
 or Aquatulco, we departed the day following, viz., April 16, 
 setting our course directly into the sea, whereupon we sailed 
 600 leagues in longitude to get a wind : and between that and 
 June 3, 1400 leagues in all, till we came into 42 degrees of 
 latitude, where the night following we found such an alterna- 
 tion of heat into extreme and nipping cold, that our men in 
 general did grievously complain thereof." 
 
 The cold seems to have increased to that extremity that, 
 in sailing two degrees further north, the ropes and tackling 
 of the ship were quite stiffened. The crew became much 
 disheartened, but Drake encouraged them, so that they re- 
 solved to endure the uttermost. On the 5th of June they were 
 forced by contrary winds to run into an ill-sheltered bay, 
 where they were enveloped in thick fogs, and the cold be- 
 coming still more severe, " commanded them to the south- 
 ward whether they would or no." "From the height of 48 
 degrees, in which now we were, to 33, we found the land by 
 coasting along it to be but low and reasonable plain : every 
 hill, (whereof we saw many, but none very high, (though it 
 were in June, and the sun in his nearest approach to them, 
 being covered with snow. In 38° 30' we fell in with a con- 
 venient and fit harbour, and June 17th came to anchor therein, 
 where we continued until the 23d day of July following." 
 
 The writer of this account, in another paragraph, confirms 
 the above statement by saying, " add to this, that though we 
 searched the coast diligently, even unto 48°, yet we found 
 not the land to trend so much as one point in any place to- 
 wards the East, but rather running on continually north-west, 
 as if it went directly into Asia." 
 
 Mr. Greenhow is disposed to reject the statement of the 
 World Encompassed, for two reasons : first, because it is im- 
 probable that a vessel like Drake's couM have sailed through 
 six degrees of latitude from the 3d to the 6th of June ; se- 
 condly, because it is impossible that such intense cold could 
 be experienced in that part of the Pacific in the month of 
 June, as is implied by the circumstances narrated, and there- 
 fore they must be "direct falsehoods." 
 
42 INTENSE COLD. 
 
 The first objection has certainly some reason in it ; but in 
 rejecting the World Encompassed, Mr. Grecnhow adopts the 
 Famous Voyage as the true narrative, so that it becomes ne- 
 cessary to see whether Hakluyt's account is not exposed to 
 objections equally grave. 
 
 Hakluyt agrees with the author of the World Encompassed, 
 in dating Drake's arrival at a convenient harbour on June 
 17, — (Hakluyt gives this date in vol. iii., p. 624,) — so that 
 Drake would have consumed twelve days in running back 
 three and a half degrees, according to one version of the Fa- 
 mous Voyage, and four and a half degrees according to the 
 other, before a wind which was so violent that he could not 
 continue to beat against it. There is no doubt about the sit- 
 uation of the port where Drake took shelter, at least within 
 half a degree, that it was either the Port de la Bodega, in 38° 
 28', as some have with good reason supposed, (Maurelle's 
 Journal, p. 626, in Barrington's Miscellanies,) or the Port de 
 los Reyes, situated between La Bodega and Port San Fran- 
 cisco, in about 38°, as the Spaniards assert ; and there is no 
 difference in the two stories in respect to the interval Avhich 
 elapsed after Drake turned back, until he reached the port. 
 There is, therefore, the improbability of Drake's vessel, ac- 
 cording to Hakhiyt, making so little way in so long a time 
 before a wind, to be set off against the improbability of its 
 making, according to the World Encompassed, so much way 
 in so short a time on a wind, the wind blowing undoubtedly 
 all this time very violently from the north-west. Many persons 
 may be disposed to think that the two improbabilities balance 
 each other. 
 
 In respect to the intense cold, it must be remembered that 
 the Famous Voyage, equally with the World Encompassed, 
 refers to the great extremity of the cold as the cause of Drake's 
 drawing back again till he reached 38°. There can, there- 
 fore, be no doubt that Drake did turn back on account of his 
 men being unable to bear up against the cold, after having 
 so lately come out of the extreme heat of the tropics. Is it 
 more probable that this intense cold should have been expe- 
 rienced in the higher or the lower latitude ? for the intense 
 cold must be admitted to be a fact. Drake seems to have 
 been exposed to one of those severe winds termed Northers^ 
 which in the early part of the summer, bringdown the atmo- 
 sphere, even at New Orleans and Mexico, to the temperature 
 of winter ; but without seeking to account for the cold, as that 
 
STOW, THE ANNALIST. 43 
 
 would be foreign to the present inquiry, the fact, to whatever 
 extent it be admitted, would rather support the statement that 
 Drake reached the 4Sth parallel, than that he was constrained 
 to turn back at the lower latitude of 43°. 
 
 It may likewise be observed that the description of the 
 coast, " as trending continually north-westward, as if it went 
 directly into Asia," would correspond with the 48th parallel, 
 but be altogether at variance with the 43d ; and it is admit- 
 ted by all, that Drake's object was to discover a passage from 
 the western to the eastern coast of North America. His 
 therefore finding the land not to trend so much as one point 
 to the east, but, on the contrary, to the westward, whilst it 
 fully accounts for his changing his course, determines also 
 where he decided to return. It should not be forgotten that 
 the statement in the World Encompassed, that the coast 
 trended to the westward in 48°, was in contradiction of the 
 popular opinion regarding the supposed Straits of Anian, and 
 if it were not the fact, the author hazarded, without an ade- 
 quate object, the rejection of this part of his narrative, and 
 unavoidably detracted from his own character for veracity. 
 
 We have, however, two cotemporaries of Sir Francis 
 Drake, v/ho confirm the statement of the World Encompassed. 
 One of these has been strangely overlooked by Mr. Green- 
 how ; namely. Stow the annalist, who, under the year 1580, 
 gives an account of the return of Master Francis Drake to 
 England, from his voyage round the world. " He passed," 
 he says, " forth northward, till he came to the latitude of forty- 
 seven, thinking to have come that way home, but being con- 
 strained by fogs and cold winds to forsake his purpose, came 
 backward to the line ward the tenth of June, 1579, and stayed 
 in the latitude of thirty-eight, to grave and trim his ship, until 
 the five-and-twenty of July." This is evidently an account 
 derived from sources quite distinct from those of either of the 
 other two narratives. It occurs as early as 1592, in an edition 
 of the Annals which is in the Bodleian Library at Oxford, so 
 that it was circulated two years at least before Drake's death. 
 
 The other authority is that of one of the most celebrated 
 navigators of Drake's age, John Davis, of Sandrug by Dart- 
 mouth, who was the author of a work entitled " The World's 
 Hydrographical Discovery." It was " imprinted at London, 
 by Thomas Dawson, dwelling at the Three Cranes in the 
 Vine-tree, in 1595," and may be found most readily in the 
 4th volume of the last edition of Hakluyt's Voyages. After 
 
44 JOIIiV DAVIS. 
 
 giving some account of the dangers which Drake had sur- 
 mounted in passing through the Straits of Magellan, which 
 Davis had himself sailed through three times, he proceeds to 
 say, that " after Sir Francis Drake was entered into the South 
 Seas, he coasted all the western shores of America, until he 
 came into the septentrional latitude of forty-eight degrees, 
 being on the back side of Newfoundland." Now Davis is 
 certainly entitled to respectful attention, from his high charac- 
 ter as a navigator. He had made three voyages in search of a 
 north-west passage, and had given his name to Davis' Straits, 
 as the discoverer of them ; he had likewise been the com- 
 panion of Cavendish in his last voyage into the South Seas, 
 in 1591-93, when, having separated from Cavendish, he dis- 
 covered the Falkland islands. He was therefore highly com- 
 petent to form a correct judgment of the value of the accounts 
 which he had received respecting Drake's voyage, nor was 
 he likely, as a rival in the career of maritime discovery, to 
 exaggerate the extent of it. We find him, on this occasion, 
 deliberately adopting the account that Drake reached that 
 portion of the north-west coast of America, which corres- 
 ponded to Newfoundland on the north-east coast, or, as he dis- 
 tinctly says, the septentrional latitude of 48 degrees. 
 
 Davis, however, is not the only naval authority of that pe- 
 riod who adopted this view, for Sir William Monson, who was 
 admiral in the reign of Elizabeth and James I., and served 
 in expeditions against the Spaniards under Drake, in his in- 
 troduction to Sir Francis Drake's voyage round the world, 
 praises him because " lastly and principally that after so many 
 miseries and extremities he endured, and almost two years 
 spent in unpractised seas, when reason would have bid him 
 sought home for his rest, he left his known course, and ven- 
 tured upon an unknown sea in forty-eight degrees, which sea 
 or passage we know had been often attempted by our seas, 
 but never discovered." And in his brief review of Sir F. 
 Drake's voyage round the world, he says: " From the 16th 
 of April to the 5th of June he sailed without seeing land, and 
 arrived in forty-eight degrees, thinking to find a passage into 
 our seas, which land he named Albion." (Sir W. Monson's 
 Naval Tracts, in Churchill's Collection of Voyages, vol. iii., 
 pp. 367, 368.) 
 
 Mr. Greenhow (j). 75) says, that Davis's assertion carries 
 with it its own refutation, " as it is nowhere else pretended 
 that Drake saw any part of the west coast of America between 
 
MR. GREENUOW'S OBJECTIONS. 45 
 
 the 17th degree of latitude and the 38th." But surely Davis 
 might use the expression, " coasted all the western shores of 
 America," without being supposed to pretend that Drake kept 
 in sight of the coast all the way. The objection seems to be 
 rather verbal than substantial. Again, Sir W. Monson is 
 charged by the same author with inconsistency, because he 
 speaks of C. Mendocino as the " furthest land discovered," 
 and the " furthermost known land." But Sir W. Monson is 
 on this occasion discussing the probable advantages of a north- 
 M'est passage as a saving of distance, and he is speaking of 
 C. Mendocino, as the " furthermost known part of America," 
 i. e., the furthermost headland from which a course might be 
 measured to the Moluccas, and he is likewise referring espe- 
 cially to the voyage of Francisco Gali, so that this objection 
 is more specious than solid. It should likewise not be for- 
 gotten, that in the most approved maps of that day, in the last 
 edition of Ortelius, for example, and in that ofHondius, which 
 is given in Purchas's Pilgrims, C. Mendocino is the northern- 
 most point of land of Norih America. It may also not be 
 amiss to remark, that in the map which Mr. Hallam (in his 
 Literature of Europe, vol. ii., c. viii., § v.) justly pronounces to 
 be the best map of the sixteenth century, and which is one of 
 uncommon rarity, Cabo Mendocino is the last headland 
 marked upon the north-west coast of America, in about 43° 
 north latitude. This map is found with a few copies of the 
 edition of Hakluyt of 1589 : in other copies, indeed, there is 
 the usual inferior map, in which C. Mendocino is placed be- 
 tween 50° and 60°. The work, however, in which it has 
 been examined for the present purpose, is Hakluyt's edition 
 of 1600, in which it is sometimes found with Sir F. Drake's 
 voyage traced out upon it : but in the copy in the Bodleian 
 Library, no such voyage is observed ; whilst the line of coast 
 is continued above C. Mendocino and marked, in large letters, 
 " Nova Albion." Thus Hakluyt himself, in adopting this 
 map as " a true hydrographical description of so much of the 
 world as hath been hitherto discovered and is common to our 
 knowledge," has so far admitted that Nova Albion extended 
 beyond the furthest land discovered by the Spaniards. On 
 the other hand, Camden, in his life of Elizabeth, first pub- 
 lished in 1615, adopts the version of the story which Hakluyt 
 had put forth in his earliest edition of the Famous Voyage, 
 making the southern limit 55° south, and the northern 42° 
 north, which Hakluyt has himself rejected in his later edition, 
 
 3* 
 
46 Johnson's life of drake. 
 
 There c?.n be little doubt that Camden's account bears inter- 
 nal evidence of having been copied in the main from Ilakluyt. 
 Purchas, as we may gather from his work, merely followed 
 Ilakluyt. 
 
 In addition to these, Mr. Greenhow enumerates several 
 comparatively recent authors as adopting Ilakluyt's opinion. 
 Of these, perhaps Dr. Johnson has the greatest renown. He 
 published a life of Drake in parts, in five numbers of the Gen- 
 tleman's Magazine for 1740-41. It was, however, amongst 
 his earliest contributions, when he was little more than thirty 
 years of age, and therefore is not entitled to all the weight 
 which the opinion of Dr. Johnson at a later period of life might 
 carry with it. But as it is, the passage, as it stands at pre- 
 sent, seems to involve a clerical error. " From Guatulco, 
 which lies in 15"^ 40', they stood out to sea, and without ap- 
 proaching any land, sailed forward till on the night following 
 the 3d of June, being then in the latitude of 3H°, they were 
 suddenly benumbed with such cold blasts that they were 
 scarcely able to handle the ropes. This cold increased upon 
 them, as they proceeded, to such a degree that the sailors 
 were discouraged from mounting upon deck ; nor were the 
 effects of the climate to be imputed to the warmth of the re- 
 gions to which they had been lately accustomed, for the ropes 
 were stiff with frost, and the meat could scarcely be conveyed 
 warm to the table. On June 17th they came to anchor in 38° 
 30'." 
 
 In the original paper, as published in the Gentleman's 
 Magazine for January, 1741, Dr. Johnson writes 88° in num- 
 bers as the parallel of latitude where the cold was felt so 
 acutely. This would be in a far lower latitude than what any 
 of the accounts of Drake's own time gives ; so that it may for 
 that reason alone be suspected to be an error of the press, 
 more particularly as Drake is made ultimately to anchor in 
 33° 30', a higher latitude than that in which his crew were 
 benumbed with the cold. We must either suppose that Dr. 
 Johnson entirely misunderstood the narrative, and intention- 
 ally represented Drake as continuing his voyage northward 
 in spite of the cold, and anchoring in a higher latitude than 
 where his men were so much discouraged by its severity, or 
 that there is a typographical error in the figures. The latter 
 seems to be the more probable alternative ; and if, in order 
 to correct this error, we may reasonably have recourse to the 
 autl.ority fiom which ho derived his information as to the lati- 
 
marchand's voyage. 47 
 
 tude of the port where Drake cast anchor, it is to the World 
 Encompassed, and not to the Famous Voyage, that we must 
 refer ; for it is the World Encompassed which gives us 38° 
 30' as the latitude of the convenient and fit harbour, whereas 
 the Famous Voyage sends Drake into a fair and good bay in 
 38.° 
 
 The dispute between Spain and Great Britain respecting 
 the fur trade on the north-west coast of America having 
 awakened the attention of the European powers to the value 
 of discoveries in that quarter, a French expedition was in con- 
 sequence despatched in 1790, under Captain Etienne Mar- 
 chand, who, after examining some parts of the north-west 
 coast of America, concluded the circumnavigation of the globe 
 in 1792. Fleurieu, the French hydrographer, published a 
 full account of Marchand's Voyage, to which he prefaced an 
 introduction, read before the French Institute in July, 1797. 
 In this introduction he reviews briefly the course of maritime 
 discovery in these parts, and states his opinion, wdthout any 
 qualification, that Sir Francis Drake made the land on the 
 north-west coast of America in the latitude of 48 degrees, 
 which no Spanish navigator had yet reached. Mr. Green- 
 how (p. 223) speaks highly of Fleurieu's work, though he 
 considers him to have been careless in the examination of his 
 authorities. He observes, that "his devotion to his own coun- 
 try, and his contempt for the Spaniards and their government, 
 led him frequently to make assertions and observations at 
 variance with truth and justice." It may be added, that at 
 the time when he composed his introduction, the relations of 
 France and Great Britain were not of a kind to dispose him 
 to favour unduly the claims of British navigators. 
 
 The same train of events which terminated in the Nootka 
 Convention, led to a Spanish expedition under Galiano and 
 Valdes, of which an account was published, by order of the 
 king of Spain, at Madrid, in 1802. The introduction to it 
 comprises a review of all the Spanish voyages of discovery 
 along the north-west coast, in the course of which it is ob- 
 served, that, from want of sufficient information in Spanish 
 history, certain foreign writers had undervalued the merit of 
 Cabrillo, by assigning to Drake the discovery of the coast 
 between 38° and 48° ; whereas, thirty-six 3-ears before 
 Drake's appearance on that coast, Cabrillo had discovered 
 it between 38° and 43^. A note appended to this passage 
 states : — "The true glory which the English navigator m^y 
 
49 Humboldt's new spain. 
 
 claim for himself is the having discovered the portion of coast 
 comprehended between the parallels of 43*^ and 48° ; to which, 
 consequently, the denomination of New Albion ought to be 
 limited, without interfering with the discoveries of preceding 
 navigators." (Relacion del Viage hecho por las Goletas 
 Sutil y Mexicana en el aiio de 1792. Introduccion, pp. xxxv. 
 xxxvi.) 
 
 To the same purport, Alexander von Humboldt, in his Essai 
 Politique sur la Nouvelle Espagne, says : — " D'aprcs des don- 
 nfees historiques certaines,la denomination de Nouvelle Albion 
 devrait etre restreinte a la partie de la c6te qui s'etend depuig 
 les 43° aux 48°, ou du Cap de Martin de Aguilar, a I'entree 
 de Juan de Fuca," (1. iii., c. viii.) And in another passage : 
 " On trouve que Francisco Gali cotoya une partie de I'Archi- 
 pel du Prince de Galles ou celui du Roi George (en 1582.) 
 Sir Francis Drake, en 1578, n'etait parvenu que jusqu'aux 
 48"^ de latitude au nord du cap Grenville, dans la Nouvelle 
 Georgie." 
 
 The question of the northern limits of Drake's expedition 
 has been rather fully entered into on this occasion, because it 
 is apprehended that Drake's visit constituted a discovery of 
 that portion of the coast which was to the north of the furthest 
 headland which Ferrelo reached in 1543, whether that 
 headland were Cape Mendocino, or Cape Blanco ; and be- 
 cause Mr. Greenhow, in the preface to the second edition of 
 his History of Oregon and California, observes, that in the 
 accounts and views there presented of Drake's visit to the 
 north-west coast, all who had criticised his work were silent, 
 or carefully omitted to notice the principal arguments ad- 
 duced by the author. We may conclude with observing, that 
 on reviewing the evidence it will be seen, that in favour of 
 the higher latitude of 48° we have a well authenticated ac- 
 count drawn up by the nephew of Sir Francis Drake himself, 
 from the notes of several persons who went the voyage, con- 
 firmed by independent statements in two contemporary wri- 
 ters. Stow the annalist, and Davis the navigator, and sup- 
 ported by the authority of Sir W. Monson, who served with 
 Drake in the Spanish wars after his return ; and on this side 
 we find ranked the influential judgment of the ablest modern 
 writers who have given their attention to the subject, such as 
 the distinguished French hydrographer Fleurieu, the able author 
 of the Introduction to the Voyage of the Sutil and Mexicana, 
 published by the authority of the king of Spain, and the learned 
 
EVIDENCE AS TO THE LIMIT OF DKAKe's EXPEDITION. 49 
 
 and laborious Alexander von Humboldt. On the opposite side 
 stands Hakkiyt, and Hakluyt alone ; for Camden and Pur- 
 chas both followed Hakluyt implicitly, and though they may 
 be considered to approve, they do not in any way confirm his 
 account ; while Hakluyt himself has nowhere disclosed his 
 sources of information, and by the variation of the two editions 
 of his work in the two most important facts of the whole voy- 
 age, namely, the extreme limits southward and northward 
 respectively of Drake's expedition, he has indirectly made 
 evident the doubtful character of the information on which he 
 relied, and has himself abandoned the version of the story, 
 which Camden and the author of the Yie de Drach, have 
 adopted upon his authority. 
 
50 
 
 CHAPTER III. 
 
 ON THE DISCOVERY OF THE NORTH-WEST COAST OF 
 AMERICA. 
 
 The Voyage of Francisco de Gualle, or Gali, in 1584, — Of Viscaino, in 
 in 1598. — River of Martin d'Aguilar. — Cessation of Spanish Enterpri- 
 ses. — Jesuit Missions in California in the 18th century. — Voyage of 
 Behring and TchiricofFin 1741. — Presidios in Upper California. — Voy- 
 age of Juan Perez in 1774; of Heceta and de la Bodega in 1775. — 
 lleceta's Inlet. — Port Bucareli. — Bay of Bodega. — Hearne's Journey to 
 the Coppermine River. — Captain James Cook in 1776. — Russian Estab- 
 lishments, in 1783, as far as Prince William's Sound ; in 1787, as far 
 as Mount Elias. — Expeditions from Macao, under the Portuguese flag, 
 in 1785 and 1786 ; under that of the British East India Company in 
 1786. — Voyage of La Perouse in 1786. — King George's Sound Com- 
 pany. — Portland and Dixon, in 1786. — Mcarcs and Tipj)ing, in 17b6, 
 under Flag of East India Company. — Duncan and Colnett in 1787. — 
 Captain Barclay discovers in 1787 the Straits in 48° 30', to which 
 Meares gives the name of Juan de Fuca in 1788. — Prince of Wales's 
 Archipelago. — Gray and Kendrick. 
 
 The Spaniards had long coveted a position in the East Indies, 
 but the Bull of Pope Alexander VI. precluded them from sail- 
 ing eastward round the Cape of Good Hope ; they had, in 
 consequence, made many attempts to find their Avay thither 
 across the Pacific. It was not, however, till 1564, that they 
 succeeded in estal)lishing themselves in the Philippine Isl- 
 ands. Thenceforth Spanish galleons sailed annually from 
 Acapulco to Manilla, and back by Macao. The trade winds 
 wafted them directly across from New Spain in about three 
 months : on their return they occupied about double that time, 
 and generally reached up into a northerly latitude, in order to 
 avail themselves of the prevailing north- westers, which carried 
 them to the shores of California. 
 
 An expedition of this kind is the next historical record of 
 voyages on this coast, after Drake's visit. Ilakluyt has pub- 
 lished the navigator's own account of it in his edition of IGOO, 
 as the " True and perfect Description of a Voyage performed 
 and done by Francisco de Gualle, a Spanish Captain and 
 Pilot, &€., in the Year of our Lord 1584." It purports to 
 
LINDSCHOTEN. 51 
 
 have been translated out of the original Spanish, verbatim, 
 into Low Dutch, by J. H. van Lindschoten ; and thence into 
 English hy Hakluyt. According to this version of it, Gualle, 
 on his return from Macao, made the coast of New Spain 
 "under seven-and-thirty degrees and a half." The author of 
 the " Introduction to the Journal of Galiano and Valdes " has 
 substituted 57^ for 37^ degrees in Gualle's, or rather Gali's, 
 account, without stating any reason for it. Mr. Greenhow, 
 indeed, refers to a note of that author's, as intimating that he 
 relied upon the evidence of papers found in the archives of 
 the Indies, but on examining the note in p. xlvi., it evidently 
 refers to two letters from the Archbishop of Mexico, then 
 Viceroy of New Spain, to the King, in reference to an expe- 
 dition which he proposed to intrust to Jayme Juan, for the 
 discovery of the Straits of Anian. It is true that the Arch- 
 bishop is stated to have consulted Gali upon his project, but 
 the author of the " Introduction " specially alludes to Lind- 
 schoten, as the person to whom the account of Gali's Voyage 
 in 15S2 was due, and refers to a French Translation of Lind- 
 schoten's work, under the title of "Le Grand Routier de 
 Mer," published at Amsterdam in 163S. But Lindschoten's 
 original work was written in the Dutch language, being inti- 
 tied " Reysgeschrift van de Navigatien der Poitigaloysers in 
 Orienten," and was published towards the end of the sixteenth 
 century; and two English translations of Gali's Voyage im- 
 mediately appeared, one in Wolf's edition of Lindschoten, in 
 1598; the other in the third volume of Hakluyt, 1598-1600. 
 Lindschoten's own Dutch version was subsequently inserted 
 in Witsen's "Norden Oost Tarterj-e," in 1692. All these 
 latter accounts, including the original, agree in stating seven- 
 and-thirty degrees and a half as the latitude where Gali dis- 
 covered "a very high and fair land, with many trees, and wholly 
 without snow." The passage in the original Dutch may be 
 referred to in Burney's History of Voyages, vol. v., p. 164. 
 The French translation, however, which the author of the 
 Introduction consulted, gives 57^°, the number being ex- 
 pressed in figures ; but as this seems to be the only authority 
 for the change, it can hardly justify it. " A high land," ob- 
 serves Captain Burney, " ornamented with trees, and entirely 
 without snow, is not inapplicable to the latitude of 37|°, but 
 would not be credible if said of the American coast in 57 p 
 N., though nothing were known of the extraordinary high 
 mountains which are on the western side of America in that 
 
52 LE GRAND ROUTIER DE MER. 
 
 parallel. It may be observed, that the French translator has 
 likewise misstated the course which Gali held in reaching 
 across from Japan to the American coast, by rendering "east 
 and east-by-north" in the original, as "east and north-east" 
 in the French version, making a difference of three points in 
 the compass, which would take him much farther north than 
 his true course. 
 
 M. Eyries, in the article " Gali," in the Biographic Uni- 
 verselle, puts forward the same view of the cause of the varia- 
 tion of the latitude in the account adopted by the author of the 
 Introduction, namely, that it was derived from the French 
 translation which he consulted. The words in the French 
 version of the Grand Routier de Mer are ; "Estans venus 
 suivant ce mesme cours pres de la coste de la Nouvelle Es- 
 pagne a la hauteur de 57 degrez et demi, nous approchasmes 
 d'un haut et fort beau pays, orne de nombre d'arbres et en- 
 tierement sans neige." M. Eyries, however, has fallen into 
 a curious mistake, as he represents Gali to have made the 
 identical voyage which is the subject of the narrative, in com- 
 pany with Jayme Juan, in execution of the project of the 
 Viceroy of Mexico, which was never accomplished, instead 
 of his having made the account of the voyage for him. That 
 M. Eyries is in error will be evident, not merely from the ac- 
 count of the author of the Introduction, if more carefully ex. 
 amined, as well as from the title and conclusion of the Voyage 
 of Gali itself, as given in Hakluyt's translation of the Dutch 
 version of Lindschoten ; but also from this circumstance, 
 which seems to be con^lasive. M. de Contreras, Archbishop 
 of Mexico, was Viceroy of New Spain for the short s|)ace of 
 one year only, and the letters which he wrote to the King of 
 Spain, submitting his project of an expedition to explore the 
 north-west coast of America for his Majesty's approval, bore 
 date the 22d January and 6th March, 1585. But Gali com- 
 menced his voyage from Acapulco in March 1582, and had re- 
 turned by the year 1584, most probably before the Archbishop 
 had entered upon his office of V^iceroy, certainly before he 
 submitted his plans to the King, which he had matured after 
 consultation with Gali. It is difficult to account for M. Eyries' 
 mistake, unless it originated in an imperfect acquaintance 
 with the Spanish language, as the statement ])y the author of 
 the Introduction is by no means obscure. Gall's voyage was 
 thus a private mercantile enterprise, and not an expedition 
 authorised and directed by the Government of New Spain, 
 
MARTIN d'aGUILAR. 53 
 
 which the account of M. Eyries might lead his reader to sup- 
 pose. It has acquired, accidentally, rather more importance 
 of late than it substantially deserves, from the circumstance 
 of its having been cited in support of the Spanish title to the 
 north-west coast of America; it has consequently been thought 
 to merit a fuller examination on the present occasion, as to its 
 true limits northward, which clearly fall short of those attained 
 by the Spaniards under Ferrelo, and very far short of those 
 reached by the British under Drake. 
 
 The next authentic expeditions on these coasts were those 
 conducted by Sebastian Viscaino. The growing rumours of 
 the discovery of the passage between the Atlantic and Pacific 
 by the Straits of Anian, and the necessity of providing accu- 
 rate charts for the vessels engaged in the trade between New 
 Spain and the Philippine islands, induced Philip II. to direct 
 an expedition to be dispatched from Acapulco in 1596, to sur- 
 vey the coasts. Nothing however of importance was accom- 
 plished on this occasion, but on the succession of Philip III. 
 in 1598, fresh orders were despatched to carry into execution 
 the intentions of his predecessor. Thirty-two charts, accord- 
 ing to Humboldt, prepared by Henri Martinez, a celebrated 
 engineer, prove that Viscaino surveyed these coasts with 
 unprecedented care and intelligence. " The sickness, how- 
 ever, of his crew, the want of provisions, and the extreme 
 severity of the season, prevented his advancing further north 
 than a headland in the 42d parallel, to which he gave the 
 name of Cape Sebastian." The smallest of his three vessels, 
 however, conducted by Martin d'Aguilar and Antonio Florez, 
 doubled Cape Mendocino, and reached the 43d parallel, where 
 they found the mouth of a river which Cabrillo has been sup- 
 posed by some to have previously discovered in 1543, and 
 which was for some time considered to be the western ex- 
 tremity of the long-sought Straits of Anian. The subsequent 
 report of the captain of a Manilla ship, in 1620, according to 
 Mr. Greenhow, led the world to adopt a different view, and 
 to suppose that it was the mouth of a passage into the northern 
 extremity of the Gulf of California ; and accordingly, in maps 
 of the later half of the seventeenth century, California was 
 represented to be an island, of which Cape Blanco was the 
 northernmost headland. After this error had been corrected 
 by the researches of the Jesuit Kuhn, in 170 ), we find in the 
 maps of the eighteenth century, such as that of Guillaume de 
 Lisle, published in Paris in 1722, California a peninsula, Cape 
 
54 BEHEING AND TCUIRICOFF. 
 
 Blanco a headland in 45% and near it marked " Entree de- 
 couverte par d'Aguilar." 
 
 With Gali and Viscaino terminates the brilliant period of 
 Spanish discoveries along the north-west coast of America. 
 The governors of New Spain during the remainder of the sev- 
 enteenth century and the greater part of the eighteenth, con- 
 fined their attention to securing the shores of the peninsula of 
 California against the armed vessels of hostile Powers, which, 
 after the discovery of the passage round Cape Horn in 1616, 
 by the Dutch navigators Lemaire and Van Schouten, carried 
 on their depredations in the Pacific with increasing frequency. 
 The country itself of California, was in 1697 subjected, by a 
 royal warrant, to an experimental process of civilisation at the 
 hands of the Jesuits, which their success in Paraguay em- 
 boldened them to undertake. In about sixty years a chain of 
 missions was established along the whole eastern side of Cali- 
 fornia, and the followers of Loyola maybe considered to have 
 ruled the country, till the decree issued by Charles III. in 
 1767, for the immediate banishment of the society from the 
 Spanish dominions, led to their expulsion from the New World. 
 During this long period, the only expedition of discovery that 
 ventured into these seas was that which Behring and Tchiri- 
 coff led forth in 174 1 from the shores of Kamtchatka, under 
 the Russian flag. Behring's own voyage southward is not 
 supposed to have extended beyond the 60th parallel of north 
 latitude, where he discovered a stupendous mountain, visible 
 at the distance of more than eighty miles, to which he gave 
 the name of Mount St. Elias, which it still bears. The ac- 
 count is derived from the journal of Steller, the naturalist of 
 Behring's ship, which Professor Pallas first published in 1795, 
 as Behring himself died on his voyage home, in one of the 
 islands of the Aleutian Archipelago, between 54j and 55^ 
 degrees north latitude. Here his vessel had been wrecked, 
 and the island still bears the name of the Russian navigator. 
 Tchiricoff, on the other hand, advanced further eastward, and 
 the Russians themselves maintain that he pushed his discov- 
 eries as far south as the 49th parallel of north latitude, (Letter 
 from the Chevalier de Poletica, Russian Minister, to the Sec- 
 retary of State at Washington, February 28, 1822, in British 
 and Foreign State Papers, 1821-22, p. 483 ;) but this has 
 been disputed. Mr. Greenhow considers, from the descrip- 
 tion of the latitude and bearings of the land discovered by him, 
 
JUAN PEREZ, 55 
 
 that it must have been one of the islands of the Prince of 
 Wales's Archipelago, in about 56"^. 
 
 The discoveries of the Russians, of which vague rumours 
 had found their way into Europe, and of which a detailed ac- 
 count was given to the Academy of Sciences at Paris, in 1750, 
 by J. N. de I'lsle, the astronomer, on his return from St. 
 Petersburg, revived the attention of Spain to the importance 
 of securing her possessions in the New World against the 
 encroachments of other Powers. It was determined that the 
 vacant coasts and islands adjacent to the settled provinces of 
 New Spain should be occupied, so as to protect them against 
 casual expeditions, and that the more distant shores should be 
 explored, so as to secure to the crown of Spain a title to them, 
 on the grounds of first discovery. With this object " the Ma- 
 rine Department of San Bias" was organised, and was charged 
 with the superintendence of all operations by sea. Its activity 
 was evinced by the establishment of eight "Presidios" along 
 the coast in Upper California, in the interval of the ten years 
 immediately preceding 1779. Of these San Diego, in 32'^ 
 39' 30", was the most southerly ; San Francisco, in 38° 48' 30", 
 the most northerly. During the same period, three expeditions 
 of discovery were dispatched from San Bias. The earliest of 
 these sailed forth in January, 1774, under the command of 
 Juan Perez, but its results were not made known before 1802, 
 when the narrative of the expedition of the Sutil and Mexicana 
 was published, as already stated. According to this account, 
 Perez, having touched at San Diego and Monterey, steered 
 out boldly into the open sea, and made the coast of America 
 again in 53° 53' north. In the latitude of 55° he discovered 
 a headland, to which he gave the name of Santa Margarita, at 
 the northern extremity of Queen Charlotte's Island. The 
 strait which separates this island from that of the Prince of 
 Wales, is henceforward marked in Spanish maps as the En- 
 trada de Perez. A scanty supply of water, however, soon 
 compelled him to steer southward, and he cast anchor in the 
 Bay of San Lorenzo in 49° 30', in the month of August, and 
 for a short time engaged in trade with the natives. Spanish 
 writers identify the bay of San Lorenzo with that to which 
 Captain Cook, four years afterwards, gave the name of Nootka 
 Sound. Perez was prevented from landing on this coast by 
 the stormy state of the weather, and his vessel was obliged to 
 cut her cables, and put to sea with the loss of her anchors. 
 He is supposed, in coasting southward, to have caught sight 
 
56 maurelle's journal. 
 
 of Mount Olympus in 47° 47'. Having determined the true 
 latitude of C. Mendocino, he returned to San Bias, after about 
 eight months' absence. Unfortunately for the fame of Perez, 
 the claim now maintained for him to the discovery of Nootka 
 Sound, was kept secret by the Spaniards till after general 
 consent had assigned it to Captain Cook. The Spaniards 
 have likewise advanced a claim to the discovery of the Straits 
 of Fuca, upon the authority of Don Esteban Jose Martinez, 
 the pilot of the Santiago, Perez' vessel ; who, according to 
 Mr. Greenhow, announced many years afterwards that he 
 remembered to have observed a wide opening in the land be- 
 tween 48° and 49° : and they have consequently marked in 
 their charts the headland at the entrance of the straits as Cape 
 Martinez. No allusion, however, is made to this claim in the 
 Introduction to the Voyage of the Sutil and Mexicana, nor in 
 Humboldt's New Spain. 
 
 In the following year (1775) a second expedition sailed 
 from San Bias under the orders of Don Bruno Heceta, Don 
 Juan de Ayala, and Don Juan de la Bodega y Quadra. The 
 Spanish government observed their usual prudent silence as 
 to the results of this expedition, but the journal of Antonio 
 Maurelle, " the second pilot of the fleet,'' who acted as pilot 
 in the Senora, which Bodega commanded, fell into the hands 
 of the Hon. Daines Barrington, who published an English 
 translation of it in his Miscellanies, in 1781. There are four 
 other accounts in MS. amongst the archives at Madrid. From 
 one of these, the journal of Heceta himself, a valuable extract 
 is given in Mr. Greenhow's Appendix. Their first discovery 
 north of C. Mendocino, was a small port in 41° 7', to w^hich 
 they gave the name of La Trinidad, and where they fixed up 
 a cross, which Vancouver found still remaining in 1793. They 
 then quitted the coast, and did not make the land again till 
 they reached 48° 26', whence they examined the shore in 
 vain towards the south for the supposed Strait of Fuca, which 
 was placed in Bellin's fanciful chart, constructed in 1766, be- 
 tween 47° and 48°. Having had seven of the Senora's men 
 massacred by the natives in the latitude of 47° 20', where 
 twelve years later a portion of the crew of the Imperial Eagle 
 were surprised and murdered, they resumed their voyage 
 northward, though Heceta, owing to the sickness of his crew, 
 was anxious to return. A storm soon afterwards separated 
 the two vessels, and Heceta returned southward. On his 
 voyage homewards he first made the land on the 10th of 
 
PORT DE LA BODEGA. 57 
 
 August, in 49° 30', on the south-west side of the great island 
 now known as Vancouver's Island, and passing the part which 
 Perez had visited, came upon the main land below the en- 
 trance of the Straits of Fuca. On the 17th of August, as he 
 was sailing along the coast between 46° 40' and 46° 4', 
 according to Heceta's own report, or in 46° 9' according to 
 the Introduction to the Voyage of the Sutil and Mexicana, 
 Heceta discovered a great bay, the head of which he could no 
 where recognise. So strong, however, were the currents and 
 eddies of the water, that he believed it to be " the mouth of 
 some great riv^er, or passage to another sea." He was dis- 
 posed, according to his own statement, to conceive it to be the 
 same with the Straits of Fuca, as he was satisfied no such 
 straits existed between 47° and 48°, where they were laid 
 down in the charts. He did not, however, venture to cast 
 anchor ; and the force of the currents, during the night, swept 
 him too far to leeward to allow him to examine it any further. 
 Heceta named the northern headland of the bay, C. San Roque ; 
 and the southern headland, C. Frondoso ; and to the bay itself 
 he gave the name of the Assumption, though, in the Spanish 
 charts, according to Humboldt, it is termed "I'Ensenada de 
 Ezeta," Heceta's Inlet. Heceta likewise gave the name of 
 C Falcon to a headland in 45° 43', known since as C. Look- 
 out ; and continuing his course to the southward along the 
 coast, reached Monterey on August 30th. 
 
 De la Bodega, in the mean time, had stretched out to 56°, 
 when he unexpectedly made the coast, 135 leagues more to 
 the westward than Bellin's chart had led him to expect. He 
 soon afterwards discovered the lofty conical mountain in King 
 George III.'s Archipelago, to which he gave the name of San 
 Jacinto, and which Cook subsequently called Mount Edge- 
 cumb, and having reached the 58th parallel, turned back to 
 examine that portion of the coast, where the Rio de los Reyes 
 was placed in the story of the adventures of Admiral Fonte. 
 Having looked for this fabulous stream in vain, they landed 
 and took possession of the shores of an extensive bay, in 55° 
 30', in the Prince of Wales' Archipelago, which they named 
 Port Bucareli, in honour of the Viceroy. Proceeding south- 
 ward, they observed the Entrada de Perez, north of Queen 
 Charlotte's Island ; but, though coasting fiom 49° within a 
 mile of the shore, according to Maurelle's account, they over- 
 looked the entrance of Fuca's Straits. A little below 47° un- 
 favourable winds drove them off the coast, which thev made 
 
58 
 
 once more in 45° 27' ; from which parallel they searched in 
 vain to 42° for the river of Martin d'Aguilar. In the latitude 
 of 38° 18' they reached a spacious and sheltered bay, which 
 they had imagined to be Port San Francisco ; but it proved 
 to be a distinct bay, not yet laid down in any chart, so De la 
 Bodega bestowed his own name upon it, having noted in his 
 journal that it was here that Sir Francis Drake careened his 
 ship. Vancouver, however, considered the bay of Sir Francis 
 Drake to be distinct from this bay of Bodega, as well as from 
 that of San Francisco. 
 
 Expeditions had been, in the mean time, made by direction 
 of the Hudson's Bay Company, across the northern regions of 
 North America, to determine, if possible, the existence of the 
 supposed northern passage between Hudson's Bay and the 
 Pacific Ocean. Mr. Samuel Hearne, one of the Company's 
 agents, in 1771, in the course of one of these journeys, suc- 
 ceeded in tracing a river, since known as the Coppermine 
 River, to a sea, where the flux and reflux of the tide was ob- 
 served. Hearne calculated the mouth of this river to be in 
 about 72° north latitude ; and he had assured himself, by his 
 own observations, that no channel connecting the two seas 
 extended across the country which he had traversed. It ap- 
 pears that a parliamentary grant of 20,000/. had been voted, 
 in 1745, by the House of Commons, for the discovery of a 
 north-west passage, through Hudson's Bay, by ships belong- 
 ing to his Britannic Majesty's subjects ; and in 1776, this re- 
 w^ard was further extended to the ships of his Majesty, which 
 might succeed in discovering a northern passage between the 
 two oceans, in any direction or under any parallel north of 
 62°. The Lords of the British Admiralty, in pursuance of 
 Hearne's report, determined on sending out an expedition to 
 explore the north-easternmost coast of the Pacific ; and Cap- 
 tain James Cook, who had just returned from an expedition in 
 the southern hemisphere, was ordered, in 1776, to proceed 
 round the Cape of Good Hope to the coast of New Albion, in 
 45 degrees. He was besides directed to avoid all interfer- 
 ence with the establishments of European Powers : to explore 
 the coast northward, after reaching New Albion, up to 65° ; 
 and there to commence a search for a river or inlet which 
 might communicate with Hudson's Bay. He was further 
 directed to take possession, in the name of his sovereign, of 
 any countries which he might discover to be uninhabited ; and 
 if there should be inhabitants in any parts not yet discovered 
 
NOOTKA sourfD. 59 
 
 by other European powers, to take possession of them, with 
 the consent of the natives. No authentic details of any dis- 
 coveries had been made public by the Spaniards since the ex- 
 pedition of Viscaino, in 1602, though rumours of certain voy- 
 ages along the north-west coast of America, made by order 
 of the viceroy of New Spain, in the two preceding years, had 
 reached England shortly before Cook sailed ; but the informa- 
 tion was too vague to afford Cook any safe directions. 
 
 The expedition reached the shores of New Albion in 44° 
 north, and thence coasted at some distance off up to 48°. Cook 
 arrived at the same conclusion which Heceta had adopted, 
 that between 47° and 48° north there were no Straits of Fu- 
 ca, as alleged. He seems to have passed unobserved the arm 
 of the sea a little further northward, having most probably 
 struck across to the coast of Vancouver's Island, which trends 
 north-westward. Having now reached the parallel of 49° 
 30', he cast anchor in a spacious bay, to which he gave the 
 name of King George's Sound ; but the name of Nootka, bor- 
 rowed from the natives, has since prevailed. It has been 
 supposed, as already stated, that Nootka Sound was the bay 
 in which Perez cast anchor, and which he named Port San 
 Lorenzo ; and that the implements of European manufacture, 
 which Captain Cook, to his great surprise, found in the pos- 
 session of one of the natives, were obtained on that occasion 
 from the Spaniards. The first notification, however, of the 
 existence of this important harbour, dates from this visit of 
 Captain Cook, who continued his voyage northward up to the 
 59th parallel, and from that point commenced his survey of 
 the coast, in the hope of discovering a passage into the Atlan- 
 tic. It is unnecessary to trace his course onward. Although 
 Spanish navigators claim to have seen portions of the coast 
 of North America between the limits of 43° and 55° prior to 
 his visit, yet their discoveries had not been made public, and 
 their observations had been too cursory and vague to lead to 
 any practical result. Captain Cook is entitled, beyond dis- 
 pute, to the credit of having first dispelled the popular errors 
 respecting the extent of the continents of America and Asia, 
 and their respective proximity : and as Drake, according to 
 Fletcher, changed the name of the land south of Magellan's 
 Straits from Terra Incognita to Terra nunc bene Cognita, so 
 Cook was assuredly entitled to change the name of the North 
 Pacific Sea from " Mare Incognitum" to " Mare nunc bene 
 Coffnitum." 
 
60 RUSSIAN ESTABLISHMENTS. 
 
 On the return of the vessels engaged in this expedition to 
 England, where they arrived in October, 1780, it was thought 
 expedient by the Board of Admiralty to delay the publication 
 of an authorised account, as Great Britain was engaged in 
 hostilities with the United States in America, and with France 
 and Spain in the Old World. The Russians in the mean time 
 hastened to avail themselves of the information which they 
 had obtained when Captain King, on his way homewards by 
 China, touched at the harbor of Petropawlosk, and an associ- 
 ation was speedily formed amongst the fur merchants of Sibe- 
 ria and Kamtchatka to open a trade with the shores of the 
 American continent. An expedition was in consequence dis- 
 patched in 1783, for the double purpose of trading and explor- 
 ing, and several trading posts were established between Ali- 
 asUa and Prince William's Sound. Mr. Greenhow (p. 161) 
 assigns to this period the Russian establishment on the island 
 of Kodiak, near the entrance of the bay called Cook's Bay, 
 but the Russian authorities refer this settlement to a period as 
 remote as 1763. (Letter from the Chevalier de Poletica to 
 the Secretary of State at Washington, 2Sth February, 1822. 
 British and Foreign State Papers, 1821-22, p. 484.) The 
 Russian establishments seem to have extended themselves in 
 1787, and the following year as far as Admiralty Bay, at the 
 foot of Mount Elias. The publication, however, of the jour- 
 nals of Cook's expedition, which took place in 1784-5, soon 
 introduced a host of rival traders into these seas. Private 
 expeditions were dispatched from Macao, under the Portu- 
 guese flag, in 1785 and 1780, and under the flag of the East 
 India Company in 1786. In the month of June of this latter 
 year. La Perouse, in command of a French expedition of dis- 
 covery, arrived ofl'the coast, and cast anchor in a bay near 
 the foot of Mount Fairweather, in about 59°, which he named 
 Port des Francais. He thence skirted the coast southward 
 past Port Bucareli, the western shores of Queen Charlotte's 
 Island, and Nootka, and reached Monterey in September, 
 where having stayed sixteen days, he bade adieu to the north- 
 west coast of America. La Perouse seems first to have sus- 
 pected the separation of Queen Charlotte's Island from the 
 continent, but as no account of the results of this expedition 
 was published before 1797, other navigators forestalled him 
 in the description of nearly all the places which he had 
 visited. 
 
 In the August of 1785, in which year La Perouse had sail- 
 
KING George's sound company. 61 
 
 ed, an association in London, styled the King George's Sound 
 Company, dispatched two vessels under the command of Cap- 
 tains Dixon and Portlock, to trade with the natives on the 
 American coast, under the protection of licences from the 
 South Sea Company, and in correspondence with the East In- 
 dia Company. They reached Cook's River in July 1786, 
 where they met with Russian traders, and intended to winter 
 in Nootka Sound, but were driven off the coast by tempestu- 
 ous weather to the Sandwich Isles. Returning northward in 
 the spring of 1787, they found Captain Meares, with his vessel 
 the Nootka, frozen up in Prince William's Sound. Meares 
 had left Calcutta in January 1786, whilst his intended con- 
 sort, the Sea Otter, commanded by Captain Tipping, had been 
 dispatched to Malacca, with instructions to proceed to the 
 north-west coast of America, and there carry on a fur trade in 
 company with the Nootka. Both these vessels sailed under 
 the flag of the East India Company. Meares, after having 
 with some difficulty got clear of the Russian establishment at 
 Kodiak, reached Cook's River soon after Dixon and Portlock 
 had quitted it, and proceeded to Prince William's Sound, 
 where he expected to meet the Sea Otter ; but Captain Tip- 
 ping and his vessel were never seen by him again after leav- 
 ing Calcutta, though Meares was led by the natives to sup- 
 pose that his consort had sailed from Prince William's Sound 
 a few days before his arrival. He determined, however, to 
 pass the winter here, in preference to sailing to the Sandwich 
 Isles, lest he should be prevented returning to the coast of 
 America. Here indeed the severity of the cold, coupled with 
 scurvy, destroyed more than half of his crew, and the survi- 
 vors were found in a state of extreme distress by Dixon and 
 Portlock, on their return to the coast in the following spring. 
 
 We have now reached a period when many minute and 
 detached discoveries took place. Prince William's Sound 
 and Nootka appear to have been the two great stations of the 
 fur trade, and it seems to have been customary, in most of the 
 trading expeditions of this period, that two vessels should be 
 dispatched in company, so as to divide the labor of visiting the 
 trading posts along the coasts. Thus, whilst Portlock remain- 
 ed between Prince William's Sound and j^Iount St. Eiias, Dix- 
 on directed his course towards Nootka, and being convinced 
 on his voyage, from the reports of the natives, that the land 
 between 52° and 54° was separated from the continent, as La 
 Perouse had suspected, he did not hesitate to call it Queen 
 
 4 
 
62 MEAKES AND TIPPING. 
 
 Charlotte's Island, from the name of his vessel, and to give to 
 the passage to the northward of it, which is marked on Spa- 
 nish maps as the Entrada de Perez, the name of Dixon's En- 
 trance. Before Dixon and Portlock quitted these coasts, in 
 1787, other vessels had arrived to share in the profits of the 
 fur trade. Amongst these the Princess Royal and the Prince 
 of Wales had been despatched from England, by the King 
 George's Sound Company, under command of Captains Dun- 
 can and Colnett ; whilst the Imperial Eagle, under Captain 
 Barclay, an Englishman, displayed in those seas for the first 
 time the flag of the Austrian East India Company. To a boat's 
 crew belonging to this latter vessel Captain Meares assigns 
 the discovery of the straits in 48° 30', to which he himself gave 
 in the following year the name of Juan de Fuca, from the old 
 Greek pilot, whose curious story has been preserved in Pur- 
 chas' Pilgrims. (Introduction to Meares' Voyages, p. Iv.) 
 Meares had succeeded in returning to Macao with the Nootka, 
 in October, 1787. In the next year he was once more upon 
 the American coast, as two other vessels, named the Fe- 
 lice and Iphigenia, were despatched from Macao, under 
 Meares and Captain Douglas respectively, the former being 
 sent direct to Nootka, the latter being ordered to make for 
 Cook's River, and thence proceeding southward to join her 
 consort. Meares, in his Observations on a North-west Pas- 
 sage, states, that Captain Douglas anticipated Captain Dun- 
 can, of the Princess Royal, in being the first to sail through 
 the Channel which separates Queen Charlotte's Island from 
 the main land, and thereby confirming the suppositions of La 
 Perouse and Dixon. Captain Duncan, however, appears at 
 all events to have explored this part of the coast more care- 
 fully than Douglas had done, and he first discovered the group 
 of small islands, which he named the Prince of Wales' Archi- 
 pelago. The announcement of this discovery seemed to some 
 persons to warrant them in giving credit once more to the ex- 
 ploded story of Admiral Fonte's voyage, and revived the ex- 
 pectation of discovering the river, which the admiral is de- 
 scribed to have ascended near 53° into a lake communicating 
 with the Atlantic Ocean. It is almost needless to observe, 
 that these expectations have never been realised. 
 
 The names of several vessels have been omitted in this 
 brief summary, which were engaged in the fur trade subse- 
 quently to the year 1785. Two vessels, however, require no- 
 tice, — the Washington under Captain Gray, and the Colum- 
 
GRAY AND KENDRICK. 63 
 
 bia under Captain Kendrick, which were despatched from 
 Boston, under the American flag, in August, 1787. Captain 
 Gray reached Nootka Sound, on Sept. 17, 17-8, and found 
 Meares preparing to launch a small vessel called the North- 
 w^est America, which he had built there. The Columbia 
 does not appear to have joined her consort till after the de- 
 parture of Meares and his companions. Meares himself set 
 sail in the Felice for China, on Sept. 23, whilst ihe Iphigenia 
 proceeded with the North-west America to the Sandwich Is- 
 lands, and wintered there. In the spring of 1789, the two 
 latter vessels returned to Nootka Sound, and found the Co- 
 lumbia had joined her consort the Washington, and both had 
 wintered there. The North-west America was despatched 
 forthwith on a trading expedition northward, whilst the Iphi- 
 genia remained at anchor in Nootka Sound. 
 
 Events were now at hand which were attended with very 
 important consequences in determining the relations of Spain 
 and Great Britain towards each other in respect to the trade 
 with the natives on their coasts, and to the right of forming 
 settlements among them. These will fitly be reserved, as in- 
 troductory to the Convention of the Escurial, which will be 
 discussed in a subsequent Chapter. 
 
64 
 
 CHAPTER IV. 
 
 ON THE PRETENDED DISCOVERIES OF THE NORTH-WEST 
 COAST. 
 
 Memoir of Lorenzo Ferrer Maldonado, in 1588. — Voyage of the Descu- 
 bierta and Atrevida, in 1 791. — Tale of Juan de Fuca, in 1592. — Voy- 
 ages of Mcarcs, Vancouver, and Lieutenant Wilkes. — Letter of Admi- 
 ral Bartoleme Fonte or de Fuentes, in 1640. — Memoir of J. N. de 
 I'Isle and Ph. Buache, in 1750. — California discovered to be a Penin- 
 sula in 1540; reported to be an Island in 1620 ; re-explored by the 
 
 Jesuit Kuhn and others, in 1701-21 Maps of the sixteenth and 
 
 seventeenth Centuries. — Fontc's Letter, a jeu-d'esprit of Petiver, the 
 Naturalist. 
 
 The general belief in the existence of a North-west passage 
 from the Atlantic to the Pacific Ocean in the direction of Gas- 
 par de Cortereal's reported Straits of Anian, led to the circu- 
 lation of many false accounts of the discovery of the desired 
 channel. The most celebrated fictions of this class seem to 
 have originated with individuals who hoped to secure, through 
 their pretended knowledge and experience, future employment, 
 as well as immediate emolument. A memoir of this kind is 
 reported to have been laid before the Council of the Indies at 
 Seville, in 1609, by Lorenzo Ferrer Maldonado, who profess- 
 ed to have sailed in 158y from Lisbon to the coast of Labra- 
 dor, and thence into the South Sea through a channel in 60'' 
 north latitude, corresponding to the Strait of Anian, accord- 
 ing to ancient tradition. He petitioned, in consequence, that 
 he might be rewarded for his services, and be entrusted with 
 an expedition to occupy the Strait of Anian, and defend the 
 passage against other nations. His cotemporaries, accord- 
 ing to the author of the Introduction to the Voyage of the Su- 
 til and Mexicana, were men of more judgment and intelli- 
 gence than some of the writers of the 18th century. The 
 former at once discovered, by personal examination of the au- 
 thor, the fictitious character of his narrative, and rejected his 
 proposal. Two copies of this memoir are supposed to exist ; 
 one of these being preserved in the library of the Duke of 
 Infantado at Madrid, the other in the Ambrosian Library at 
 
DESCUBIERTA AND ATREVIDA. 65 
 
 Milan. The former of these is considered by the author of 
 the Introduction to be certainly a cotemporaneous, and per- 
 haps the original, copy of the memoir: the Ambrosian manu- 
 script, on the other hand, has been pronounced, in an article 
 in the London Quarterly Review for October, 1816, to be 
 " the clumsy and audacious forgery of some ignorant Ger- 
 man," from the circumstance of fifteen leagues to the degree 
 being used in some of the computations. To the same pur- 
 pose Capt. James Burney, in the fifth volume of his Voyages, 
 published in 1817, observes, that "it must not be omitted 
 that the reckoning in the narrative is in German leagues. It 
 is said, ' from the latitude of 64° you will have to sail 120 
 leagues to the latitude of 72°, which corresponds with the 
 German league of 15 to a degree, and not with the Spanish 
 league of 17j to a degree, by which last the early Spanish 
 navigators were accustomed to reckon. From this peculiari- 
 ty in the narrative it may be conjectured, that the real author 
 was a Fleming, who probably thought he could not better ad- 
 vance his spurious offspring, than by laying it at the door of 
 a man who had projected to invent a compass without varia- 
 tion," as Maldonado professed to do to the Council of the In- 
 dies, according to Antonio Leo in his Bibliotheca Indica. 
 
 Allusions had been occasionally made to this work by 
 Spanish writers in the 17th century, amongst others by De 
 Luque, the author of the " Establecimientos Ultramarines de 
 las Naceones Europeas." It was not, however, till so late a 
 period as 1790 that the attention of men of science was drawn 
 to the Madrid manuscript by J. N. Buache, the geographer of 
 the King of France, in a paper read before the Academy of 
 Sciences at Paris in that year. Captain Burney states, that 
 the manuscript had been brought to notice shortly before by 
 M. de Mendoza, a captain in the Spanish navy, who was em- 
 ployed in forming a collection of voyages for the use of that 
 service. M. Buache, who had succeeded D'Anville as Geo- 
 grapher Royal in 1768, followed the geographical system of 
 Ph. Buache, his relative and predecessor, and, like him, clung 
 fondly to questionable discoveries. He had been employed 
 to prepare instructions for the expedit^oi of La Perouse, and 
 thus his attention had been especially drawn to voyages of 
 discovery on the north-west coast of America. He declared 
 himself in his memoir so strongly in favor of the genuineness 
 of the manuscript, and of the good faith of Maldonado, that 
 the Spanish government, in order that the question might be 
 
66 JUAN DE FUCA. 
 
 definitively set at rest, directed its archives to be searched, 
 and the manuscript in the library of the Duke of Infantado to 
 be carefully examined, and at the same time gave orders that 
 the corvettes Descubierta and Atrevida, which were fitting 
 out at Acapulco for a voyage round the world, should explore 
 the coasts and port which Maldonado pretended to have dis- 
 covered in the South Sea. The archives, however, furnished 
 ample evidence of the correctness of the ancient opinion that 
 Maldonado was an impostor, and the expedition of the cor- 
 vettes, which sailed in 1791, confirmed this fact beyond dis- 
 pute. A memoir to that effect, founded upon their observa- 
 tions, was published in 1797, by Don Ciriaco Cevallos, who 
 had accompanied the expedition, to prove the utter falsity of 
 Maldonado's story. 
 
 It was, however, once more revived by the discovery of the 
 Ambrosian manuscript in 1812 by Carlo Amoretti. This is 
 said to give a more succinct account than the Madrid docu- 
 ment, and it has been thought by some to be an abridgment 
 of it. The article in the Quarterly Review above alluded to 
 was occasioned by its appearance, and to the curious will 
 furnish ample information. The Milan account of the voyage 
 may be referred to in the fifth volume of Burney's History of 
 Voyages. The Madrid document will be found in Barrow's 
 Chronological History of Voyages in the Arctic Regions. 
 
 A much more plausible narrative was published in 1625, 
 in the third volume of " The Pilgrims," by Purchas, the suc- 
 cessor of Hakluyt as the historian of maritime enterprises. 
 It is entitled " A Note made by me, Michael Lock the elder, 
 touching the Strait of Sea, commonly called Fretum Anian, 
 in the South Sea, through the North-west Passage of Meta 
 Incognita." The writer purported to give an account of 
 what had been communicated to him at Venice, in April, 
 1596, by an ancient Greek pilot, commonly called Juan de 
 Fuca, but properly named Apostolos Valerianus, who repre- 
 sented himself to have been taken in a Spanish ship by Cap- 
 tain Candish, and to have thereby lost 60,000 ducats, and to 
 have been at another time sent by the Viceroy of Mexico to 
 discover and fortify the Straits of Anian. His tale was to this 
 effect : " That shortly afterwards, having been sent again, 
 in 1592, by the Viceroy of Mexico, with a small caravel and 
 pinnace, armed with mariners only, he followed the coast of 
 North America until he came to the latitude of 47°, and there 
 finding that the land trended east and north-east, with a broad 
 
NORTH-WEST PASSAGE. C7 
 
 inlet of sea between 47 and 48 degrees of latitude, he entered 
 thereinto, sailing therein more than twenty days, and found 
 that land trending still sometimes north-west and north-east 
 and north, and also east, and south-eastward, and very much 
 broader sea than was at the said entrance, and that he passed 
 by divers islands in that sailing. And that at the entrance of 
 this said strait, there is 07i the north-west coast thereof a great 
 headland or island, with an exceeding high pinnacle or spired 
 rock, like a pillar, thereupon. 
 
 " Also, he said, he went on land in divers places, and there 
 he saw some people on land, clad is beasts' skins ; and that 
 the land is very fruitful, and rich of gold, silver, pearls, and 
 other things, like new Spain. 
 
 " And also, he said, that he being entered thus far into the 
 said strait, and being come into the North Sea already, and 
 finding the sea wide enough everywhere, and to be about thir- 
 ty or forty leagues wide in the mouth of the straits, where he 
 entered, he thought that he had now well discharged his office, 
 and that not being armed to resist the force of the savage peo- 
 ple that might happen, he therefore set sail, and returned 
 homewards again towards New Spain, where he arrived at 
 Acapulco, anno 1592, hoping to be rewarded by the Viceroy 
 for the service done in the said voyage. 
 
 " Also, he said that, after coming to Mexico, he was great- 
 ly welcomed by the Viceroy, and had promises of great re- 
 ward ; but that having sued there for two years, and obtained 
 nothing to his content, the Viceroy told him that he should be 
 rewarded in Spain of the King himself very greatly, and will- 
 ed him therefore to go to Spain, which voyage he did per- 
 form. 
 
 " Also, he said, that when he was come into Spain, he was 
 welcomed there at the King's court ; but after long suit there 
 also, he could not get any reward there to his content. And 
 therefore at length he stole away out of Spain, and came into 
 Italy, to go home again and live among his own kindred and 
 countrymen, he being very old. 
 
 " Also, he said, that he thought the cause of his ill reward 
 had of the Spaniards, to be for that they did understand very 
 well that the English nation had now given over all their voy- 
 ages for discovery of the North-west Passage, wherefore they 
 need not fear them any more to come that way into the South 
 Sea, and therefore they needed not his service therein any 
 more. 
 
68 NORTH-WEST PASSAGE. 
 
 "Also, he said, that understanding llie nohle mind of the 
 Queen of England, of her wars against the Spaniards, and 
 hoping that her majesty would do him justice for his goods lost 
 by Captain Candish, he would be content to go into England, 
 and serve her majesty in that voyage for the discovery perfectly 
 of the north-west passage into the South Sea, if she would fur- 
 nish him with only one ship of forty tons burthen and a pin- 
 nace, and that he would perform it in thirty days time from 
 one end to the other of the straits, and he wished me so to 
 write to England." 
 
 As this asserted discovery was one upon which the Span- 
 ish commissioner, in the negotiations antecedent to the Trea- 
 ty of the Floridas, relied to support the claim of the Spanish 
 crown to the north-west coast of America, and as authors of 
 late whose opinions are entitled to respect, such as Fieurieu, 
 and Mr. Greenhow, have inclined to admit the general truth 
 of the account, the substantial part of it has been quoted at 
 full length, as it appears both that Fuca's narrative, if we ad- 
 mit it to be genuine, does not accord, in respect to any sub- 
 stantial fact, with the authentic reports of subsequent voya- 
 ges, and that the object of the fiction is patent on the face of 
 the story. 
 
 The object of the Greek pilot was evidently to obtain, upon 
 the faith of his narrative, employment from the Queen of Eng- 
 land ; and as, from his own statement, he was aware that the 
 spirit of discovery was for the moment languid amongst the 
 English nation, he represented the country as " very fruitful 
 and rich of gold, silver, pearls, and other things, like New 
 Spain." This exaggeration of the probable profits of the un- 
 dertaking would not perhaps alone disentitle the narrator to 
 credit in respect to the other circumstances of his voyage, 
 though his integrity in making the communication might there- 
 by become open to question : but when we look to the assert- 
 ed facts of his voyage, the truth or falsehood of which must 
 be conclusive as to the character of the narrative itself, we 
 find that they do not correspond in any respect with ascer- 
 tained facts. The straits to which Meares gave the name of 
 Juan de Fuca in 1788, are between the 48th and 49th paral- 
 lel. Mr. Greenhow considers that the difference in the posi- 
 tion is sufficiently slight as to be within the limits of suppos- 
 able error en the part of the Greek pilot; and certainly, if this 
 were the only difficulty, it might not be conclusive against his 
 veracity. But the straits which he professed to have discov- 
 
SILENCE OF SPANISH WRITERS. ^9 
 
 ered were from 30 to 40 leagues wide at the mouth where he 
 entered, and according to his story he sailed through them in- 
 to the North Sea, and upon the faith of this he offered to per- 
 fect his discovery of the north-west passage into the South 
 Sea for the Queen of England, and to perform it in thirty days 
 time from one end to the other of the straits. Now this de- 
 scription is so totally at variance with the real character of 
 any straits on the west coast of America, that the happy co- 
 incidence of trifling circumstances can hardly be considered 
 sufficient to turn the scale in its favor. Amongst the latter, 
 the existence of a pillar has been alleged, as corresponding 
 with De Fuca's account. Meares, for instance, on approach- 
 ing the straits from the north, speaks " of a small island, situ- 
 ated about two miles from the southern land, that formed the 
 entrance of this strait, near which we saw a very remarkable 
 rock, that wore the form of an obelisk, and stood at some 
 distance from the island," (p. 153,) which, in his Observa- 
 tions on a North-west Passage (p. Ixi.) he seems to consider 
 to be the pinnacle rock of De Fuca ; but unfortunately De 
 Fuca has placed his " island with an exceeding high pinna- 
 cle or spiral rock " on the north-icest coast, at the entrance of 
 the strait, instead of on the southern shore. Vancouver, on 
 entering the straits, failed himself to recognize any rock as 
 corresponding to the pinnacle rock which Mr. Meares had 
 represented, but he observes that a rock wdthin Tatooche's 
 Island, on the southern side of the entrance, which is united 
 to the main land by a ledge of rocks, over w hich the sea 
 breaks violently, w^as noticed, and supposed to be that repre- 
 sented as De Fuca's pinnacle rock : " this, however, was 
 visible only for a few minutes, from its being close to the 
 shore of the main-land, instead of lying in the entrance of 
 the straits, nor did it correspond with that which has been so 
 described." On the other hand. Lieutenant Wilkes, in his 
 Account of the United States Exploring Expedition, says, '''•In 
 leaving De Fuca's Straits, I anxiously watched for De Fuca's 
 Pillar, and soon obtained a sketch of it ;" but he does not 
 state whether he meant the pillar which Meares observed on 
 the southern side, and called De Fuca's Pillar, or one which, 
 according to the Greek pilot, should have formed a prominent 
 object on the north-western coast of the strait. 
 
 It is not unimportant to observe, that there is no Spanish 
 writer w^ho speaks of De Fuca or his discovery : that neither 
 in any private archives in Spain, nor in the public archives 
 
 4* 
 
70 BARTOLEME FONTE. 
 
 of the Indies at Seville, is there any notice of this celebrated 
 navigator or of his important expedition, which the author of 
 the Introduction to the Voyage of the Sutil and Mexicana ob- 
 serves is the more remarkable, from the great number of 
 other voyages and expeditions of the same period preserved in 
 the archives, which have escaped the notice of contempora- 
 ry writers ; and, what is perhaps still more conclusive, that 
 Humboldt, in his account of New Spain, (1. iii., ch. viii.,) 
 states, that in spite of all his researches he had not been able 
 to find throughout New Spain a single document in which the 
 name of the pilot De Fuca occurs. 
 
 The whole of these latter observations apply with equal force 
 to the voyage of Admiral Bartoleme Fonte or de Fucntes, 
 which purposes to have been performed in 1640 ; the narra- 
 tive, however, did not make its appearance till 1708, when it 
 was published in London, in two parts, in " The Monthly 
 Miscellany, or Memoirs of the Curious." The mode in which 
 it was ushered into public notice would alone be sufficient to 
 expose it to considerable suspicion, and the gross absurdities 
 with which it is replete would have at once exempted it from 
 any serious criticism, had not the Spanish commissioner, in 
 the negotiations already alluded to, and of which a full ac- 
 count will be given in a subsequent place, rested upon it the 
 territorial title of Spain to the north-west coast, up to 55° of 
 north latitude. Fonte, according to the narrative, sailed with 
 four vessels from Callao into the North Pacific, with orders 
 from the Viceroy of Peru to intercept certain vessels which 
 had sailed from Boston in New England, with the object of 
 exploring a north-west passage. On arriving at C. St. Lucas, 
 at the south point of California, he despatched one of his ves- 
 sels " to discover whether California was an island or not, 
 (for before, it was not known whether it was an island or a 
 peninsula.") He thence coasted along California to 26° of 
 north latitude, and having a steady gale from the S.S.E., in 
 the interval between May 26, and June 14, " he reached the 
 River los Reyes in 53° of north latitude, not having occasion 
 to lower a top-sail in sailing 886 leagues N.N.W., 410 
 leagues from Port Abel to C. Blanco, 456 leagues to Rio de 
 los Reyes, having sailed about 260 leagues in crooked chan- 
 nels, amongst islands named the Archipelagus de St. Lazarus, 
 where his ships' boats always sailed a mile a-head, sounding, 
 to see what water, rocks, and sands there was." "They had 
 two Jesuits with them, that had been on their mission at 66"^ 
 
DE l'isle and CUACHE. 71 
 
 of N.L., and had made curious observations." Fonte ascend- 
 ed the Rio de los Reyes in his ships to a large lake, which 
 he called Lake Belle. Here, he says, he left his vessels and 
 proceeded down another river, passing eight falls, in all 32 
 feet perpendicular, into a large lake which he named Do 
 Fonte. Thence he sailed out through the Estrecho de Ron- 
 quillo into the sea, where they found a large ship where the 
 natives had never seen one before, from a town called Boston, 
 the master of which. Captain Shaply, told him that his owner 
 was " a fine gentleman, and major-general of the largest col- 
 ony in New England, called the Maltechusets." Having ex- 
 changed all sorts of civilities and presents with this gen- 
 tleman, the admiral went back to his ships in Lake Belle, 
 and returned by the Rio de los Reyes to the South Sea. One 
 of his officers had in the mean time ascended another river, 
 which he named Rio de Haro, in the lake Velasco, in 61°, 
 whence he sailed in Lidian boats as far north as 77°. Here 
 he ascertained that there was no communication out of the 
 Spanish or Atlantic Sea by Davis' Straits, from one of his own 
 seamen, who had been conducted by the natives to the head 
 of Davis' Strait, which terminated in a fresh lake of about 
 30 miles in circumference, in 80° N.L. He himself in the 
 meantime had sailed as far north as 79°, and then the land 
 trended north, and the ice rested on the land. The result of 
 this expedition was, that they returned home, " having found 
 there was no passage into the South Seas by what they call 
 the North-west Passage." 
 
 Such is the substance of this rather dull story, which may 
 be read in full in the third volume of Burney's History of 
 Voyages in the South Sea, p. 190. Mr. Greenhow (p. 84) 
 observes, that " the account is very confused and badly writ- 
 ten, and is filled with absurdities and contradictions, which 
 should have prevented it from receiving credit at any time 
 since its appearance : yet, as will be shown, it was seriously 
 examined and defended, so recently as in the middle of the 
 last century, by scientific men of great eminence, and some 
 faith continued to be attached to it for many years afterwards." 
 
 Amongst its defenders the most conspicuous were J. N. de 
 risle, the brother of V/illiam de l'isle, and Philippe Buache, 
 the geographer of the French King, the predecessor of J. N. 
 Buache, who has already been mentioned as the author of a 
 memoir in defence of Maldonado's narrative. De l'isle pre- 
 sented to the Academy of Sciences, in 1750, a memoir " sur les 
 
72 vaugondy's reply. 
 
 nouvclles decouvertes au nord de la mer du Sud," with a map 
 prepared by Ph. Buache, to represent these discoveries. The 
 communication was in other respects of great importance, as 
 it contained the first authentic account ot'the discoveries late- 
 ly made by Behring and Tchiricoff, in 1741. It is not stated 
 from what source De I'lsle derived the copy of Fonte's letter, 
 w^hich seems to have come into his possession accidentally at 
 St. Petersburg, during the absence of the Russian expedition : 
 it was not, however, till his return to France in 1747, that he 
 examined it in company with Ph. Buache. They were agree- 
 ably surprised to find that it accorded with Buache's own con- 
 jectures, that it harmonised in many respects with the discov- 
 eries of the Russians. In consequence, Buache laid down 
 in his new map a water communication between the Pacific 
 Ocean and Hudson's Bay. Voltaire, relying on the authority 
 of De risle, maintained in his History of Russia, published in 
 1759, that the famous passage so long sought for had been at 
 last discovered. The Academy, however, received Fonte's 
 narrative with discreet reserve ; and observed, that it required 
 more certain proofs to substantiate it. 
 
 The author of the Introduction to the Voyage of the Sutil 
 and Mexicana states, that the Spanish government, on the 
 representation of the French geographers, instituted a careful 
 search into the archives of the Indies in New Spain, as well 
 as into the archives of Peru, and likewise into the archives at 
 Seville, Madrid, Cadiz, and other places, but that not the 
 slightest allusion to De Fonte could be anywhere traced. 
 This result was made known by Robert de Vaugondy, in his 
 reply to Buache, intitled " Observations Critiques sur les 
 nouvelles Decouvertes de I'Amiral Fuentes, 8vo. 1753 ;" 
 and the author of the Noticia di California, published in Ma- 
 drid, in 1757, confirmed Vaugondy 's announcement. 
 
 It is unnecessary to observe, that the experience of subse- 
 quent navigators has failed to confirm the narrative of De 
 Fonte. There is one passage in the narrative which seems 
 almost of itself to be sufficient to condemn the story. The 
 admiral is made to state, "that he despatched one of his ves- 
 sels to discover whether California was an island or not ; for 
 before it was not known whether California was an island or 
 a peninsula." Now the Californian Gulf had been complete- 
 ly explored by Francisco de Ulloa, in 1539, who ascertained 
 the fact of the junction of the peninsula to the main land, near 
 the 32d degree of latitude ; and again by Fernando de Alar- 
 
GEOGRAPHY OF CALIFORNIA. 73 
 
 con, in 1540, who ascended a great river at the head of the 
 Gulf of California, supposed to be the Colorado. A series of 
 excellent charts were drawn up by Domingo del Castillo, 
 Alarcon's pilot, a fac-simile of which Mr. Greenhow (p. 61) 
 states may be found in the edition of the letters of Cortez, 
 published at Mexico in 1770, by Archbishop Lorenzana. 
 The shores of the gulf, and of the west side of California, to 
 the 30th degree of latitude, were there delineated with a sur- 
 prising approach of accuracy. It is not a reasonable suppo- 
 sition that the Admiral of New Spain and Peru, who must 
 have had ready access to the archives of the Indies at Mexico, 
 should have expressed himself in a manner which argued a to- 
 tal ignorance of the previous discoveries of his countrymen ; 
 but it was very probable that a contributor to the Monthly 
 Miscellany should stumble upon this ground, from a notion 
 having been revived in Europe, about the middle of the 17th 
 century, that California was an island. 
 
 Humboldt, in his Essai Politique sur la Nouvelle Espagne, 
 1. iii., c. yiii., states, that when the Jesuits Kiihn, Salvatierra, 
 and Ugarte, explored, in detail, during the years 1701-21, 
 the coasts of the Gulf of California, it was thought in Eu- 
 rope to have been for the first time discovered that California 
 was a peninsula. But, in his Introduction Geographique, 
 he observes, that in the sixteenth century no person in Mex- 
 ico denied this fact ; nor was it till the seventeenth century 
 that the idea originated that California was an island. Dur- 
 ing the seventeenth century, the Dutch freebooters were 
 amongst the most active and inveterate enemies of Spain in 
 the New World ; and having established themselves in the 
 bay of Pichilingue, on the east coast of California, from 
 which circumstance they received the name of "Pichilin- 
 gues," they caused great embarrassment to the Spanish vice- 
 roys from their proximity to the coasts of Mexico. To these 
 adventurers the origin of the notion, that California was sepa- 
 rated from the main land, has been referred by some authors ; 
 but Mr. Greenhow (p. 94) states, that it was to be traced to the 
 captain of a Manilla ship, in 1620, who reported that the as- 
 serted river of D'Aguilar was the western mouth of a chan- 
 nel which separated the northern extremity of California from 
 the main land. A survey of the lower part of the peninsula 
 was executed by the Governor of Cinaloa, and the Jesuit Ja- 
 cinto Cortes, in pursuance of the orders of the Duke of Ksca- 
 lona, who was Viceroy during 1640-42, about the very time 
 
74 VAUIATIONS IN MAPS. 
 
 when Fonte purported to have sailed. They did not, how- 
 ever, go to the head of the gulf; and Humboldt informs us, 
 that, during the feeble reign of Charles II. of Spain, 1G55- 
 1700, several writers had begun to regard California as a 
 cluster of large islands, under the name of" Islas Carolinas." 
 Thus we find in the maps of this period, in those for example 
 of Sanson, Paris, 1650 ; of Du Val, geographer to the King 
 of France, Abbeville, 1655 ; of Jenner, London, 1666 ; of 
 De Wit, Amsterdam ; of Vischer, Schenkius, Herman, Moll, 
 and others, which are in the King's Library at the British 
 Museum, California is depicted as an island ; and in Jenner's 
 Map, in which C. Blanco is the northernmost headland of 
 California, there is this note : — " This California was in times 
 past thought to have been a part of the continent, and so 
 made in all maps ; but, by further discoveries, was found to 
 be an island, long 1700 leagues." 
 
 On the other hand, the maps of the later part of the six- 
 teenth, and the earlier part of the seventeenth centuries, such 
 as those by Ortelius, the King of Spain's geographer, pub- 
 lished in his Theatrum Orbis Terrarum, first edited in 1570, 
 the two maps adopted by Hakluyt in the respective editions 
 of his voyages, in 1589 and 1600, that of Le Clerc, 1602, of 
 Hondius, which Purchas adopted in his Pilgrims, in 1625, of 
 Speed, 1646, and that of Blaew in his Novus Atlas of 1648, 
 agree in representing California as a peninsula. The single 
 passage, therefore, in De Fonte's account, in which he, being 
 "then admiral of New Spain and Peru, and now prince (or 
 rather president) of Chili, explicitly states that he despatched 
 one of his vessels, under the command of Don Diego Penne- 
 losa, the nephew of Don Luis de Iiaro," then great minister 
 of Spain, " to discover whether California was an island or 
 not, for before it was not known whether it was an island or 
 a peninsula," seems to point at once to the European origin 
 of the tale. Mr. Dalrymple, the well-known secretary of the 
 British Admiralty at the time of the Nootka Sound contro- 
 versy, who was distinguished as the author of many able 
 works on maritime discoveries, considered the story to have 
 been a jeu-d'esprit of Mr. James Petiver the naturalist, one 
 of the contributors to the Monthly Miscellany, whose taste 
 for such subjects was evinced by his collection of MS. ex- 
 tracts, since preserved in the British Museum, and whose 
 talent for such kind of composition was shown by his Ac- 
 count of a Voyage to the Levant, published in the same Mis- 
 
PETIVER THE NATURALIST. 75 
 
 cellany. It is worthy of remark, that the tale of De Fuca 
 and the letter of De Fonte, as they have derived their origin, 
 so they have derived their support, from writers foreign to the 
 nation in whose favour they set up the asserted discoveries, 
 and from them alone. Maldonado, it is true, was a Spaniard, 
 but he likewise has found defenders only amongst strangers, 
 whilst in his own country his narrative has been condemned 
 as an imposture by posterity equally as by his cotempo- 
 raries. 
 
76 
 
 CHAPTER V. 
 
 THE CONVENTION OF THE ESCURIAL. 
 
 The King George's Sound Company, in 1785. — Dixon and Portlock. — 
 The Nootka and Sea Otter. — The Captain Cook and Experiment. — Ex- 
 pedition of Captain Hanna under the Portuguese Flag. — The FeUce and 
 Iphigenia. — The Princesa and San Carlos, in 1788. — Martinez and 
 Haro directed to occupy Nootka in 1789. — The Princess Royal ar- 
 rives at Nootka. — Colnett arrives in the Argonaut, July 2, 1789, with 
 instructions to found a Factory. — lie is seized, with his Vessel, by 
 Martinez. — The Princess Royal also seized. — Both vessels sent as 
 Prizes to San Bias — The Columbia and Washington allowed to depart. 
 — Representation of the Spanish Government to the Court of London. 
 — British Reply. — Memorial of Captain Meares. — Message of the Bri- 
 tish Crown to Parliament. — British Note of May 5, 1790, to the Spa- 
 nish Minister in London. — British Memorial of May 1 6. — Memorial of 
 the Court of Spain, July 13. — Declaration of his Catholic Majesty to 
 all the Courts of Europe. — Treaty of Utrccnt. — Declaration and Coun- 
 ter declaration of July 4. — Spain demands aid from France, according 
 to the Family Compact of 1761. — The National Assembly promotes a 
 peaceful Adjustment of the Dispute. — Convention between Spain and 
 Great Britain signed at the Escurial, Oct. 28, 179U. — Recognition of 
 the Claims of Great Britain. 
 
 It has been already observed, that no British subject could 
 trade to the west of Cape Horn without a licence from the 
 South Sea Company, whilst, on the other hand, to the east- 
 ward of the Cape of Good Hope the East India Company 
 possessed an exclusive monopoly of commerce. Thus the 
 mercantile association which assumed the name of the King 
 George's Sound Company, and which despatched two vessels 
 under Dixon and Portlock from England in the autumn of 
 1785, had found it necessary to obtain licences from the South 
 Sea Conij)any for them to proceed by way of Cape Horn, 
 and they had likewise entered into an arrangement with the 
 East India Company to carry their furs to Canton, and there 
 exchange them for teas and other products of China, to be 
 conveyed in their turn round the Cape of Good Hope to Eng- 
 land. These vessels sailed under the British flag. With a 
 similar object, two vessels, the Nootka, under Captain Meares, 
 and the Sea Otter, under Captain Tipping, were, by an asso- 
 
KING George's sound company. 77 
 
 ciation under the patronage of the Governor General of In- 
 dia, early in 1788, despatched from Calcutta, under the flag 
 of the English East India Company, whilst the Captain Cook 
 and the Experiment sailed from Bombay for the same desti- 
 nation. An attempt, however, had been made by the British 
 merchants in the preceding year, to organise a trade between 
 North-west America and China, under the protection of the 
 Portuguese flag, so as to evade the excessive harbour dues 
 demanded by the Chinese authorities from other European 
 nations, by means of licences granted by the Portuguese au- 
 thorities at Macao. The first expedition of this kind was 
 made by Captain Hanna, in 1785, and was most successful 
 as a commercial speculation. In a similar manner, in 1788, 
 some British merchants residing in India fitted out the Felice 
 and Iphigenia for this trade, and through the interest of Juan 
 Cavallo, a Portuguese merchant who had resided for many 
 years at Bombay as a naturalised British subject, and traded 
 from that place under the protection of the East India Com- 
 pany, obtained from the Governor of Macao permission for 
 them to navigate under the Portuguese flag, if found conve- 
 nient. Meares in his memorial states, that Cavallo merely 
 lent his name to the firm, and that he had no real interest in 
 the Iphigenia, as on his subsequent bankruptcy the claims of 
 his creditors were successfully resisted, and the Iphigenia 
 consequently lost the privileges which she had hitherto en- 
 joyed in the ports of China, in her character of a Portuguese 
 ship. On the other hand, in the obligation which Martinez 
 exacted from the master and supercargo of the Iphigenia, 
 Cavallo is spoken of as the lawful owner of the vessel in 
 whose name they bound themselves. It is possible however 
 that they may have bound the ostensible owner on purpose to 
 defeat the object of the Spanish commander, instead of the 
 real owners ; and assuredly the instructions of the Merchant 
 Proprietors to Captain Meares, " commanding the Felice and 
 Iphigenia," seem to be at variance with the fact of Cavallo 
 being the real owner, as they are addressed to him evidently 
 not in the mere character of supercargo, but as having the 
 complete control of the vessels, which are expressly stated to 
 have been fitted out and equipped by the Merchant Proprie- 
 tors : and Meares is directed to defend his vessel against all 
 attempts of Russian, English, or Spanish vessels to seize it ; 
 to protest, if captured, against the seizure of his vessel and 
 cargo ; and to take possession of any vessel that attacked 
 
t8 THE MERCHANT rROrRIETORS. 
 
 him, as also her cargo, in case he should have the superiority 
 in the conflict. (Appendix to Meares' Voyage.) 
 
 To the same etiect, the orders of Captain Meares to Cap- 
 tain Douglas, of the Iphigenia, seem to be conclusive that the 
 latter had full control over the vessel. " Should you," it is 
 observed, " in the course of your voyage, meet with the ves- 
 sels of any other nation, you will have as little communica- 
 tion with them as possible. If they be of superior force, and 
 desire to see your papers, you will show them. You will, 
 however, be on your guard against surprise. Should they be 
 either Russian, English, Spanish, or any other civilised na- 
 tion, and are authorised to examine your papers, you will per- 
 mit them, and treat them with civility and friendship. But 
 at the same time you must be on your guard. Should they 
 attempt to seize you, or even carry you out of your way, you 
 will prevent it by every means in your power, and repel force 
 by force." 
 
 Captain Douglas, moreover, was directed to note down 
 the good behaviour of his officers and crew, and thus afford 
 his employers a medium to distinguish merit from worthless- 
 ness. "This log-book," they go on to state, " is to be signed 
 by yourself. On your return to China you will seal up your 
 log-book, charts, plans, &c., &;c., and forward them to Daniel 
 Beale, Esq., of Canton, who is the ostensible agent for the 
 concern ; and you have the most particular injunctions not to 
 communicate or give copies of any charts or plans that you 
 may make, as your employers assert a right to all of them, 
 and as such will claim them." 
 
 The person to whom such instructions were addressed must 
 evidently have had the control of the vessel, and not been 
 merely in charge of the cargo. It has been, however, rightly 
 observed by Mr. Greenhow, that the papers on board the 
 Iphigenia, when seized by Martinez, were written in the Por- 
 tuguese language, which Captain Douglas did not under- 
 stand, and therefore could not well act upon. The reply to 
 this seems to be, that Douglas himself acted upon the letter 
 of Captain Meares, inserted in the Appendix to Meares' Voy- 
 ages, which embodied in English the substance of the gene- 
 ral instructions drawn up for the expedition in Portuguese ; 
 and that the ship's papers were in the Portuguese language 
 to support her assumed Portuguese character. There is no 
 doubt that there was some deception in the transaction, but 
 
BRITISH COLOURS HOISTED AT NOOTKA. 79 
 
 the deception seems to have been directed rather against the 
 Chinese than the Spaniards. 
 
 Whatever may have been the character which was sought 
 to be given to the Felice and Iphigenia, Meares appears on 
 landing at Nootka to have avowed his British character, by 
 hoisting British colours upon the house which he built on 
 ground granted to him by Maquilla, the chief of the neigh- 
 bouring district, as well as by displaying the English ensign 
 on the vessel which he constructed and launched at Nootka. 
 It was his intention to employ this vessel, a sloop of about 
 forty tons, exclusively on the coast of America, in exploring 
 new trading stations, and in collecting furs to be conveyed by 
 the other vessels to the Chinese markets. It w^as named the 
 North-west America, and was manned by a crew of seven 
 British subjects and three natives of China. 
 
 Meares, having left the Iphigenia and North-west America 
 to carry on the trade on the American coast, returned with a 
 cargo of furs to Macao, in December 1788, and having there 
 sold the Felice, associated himself with some merchants of 
 London, who had embarked in this commerce under licences 
 from the East India and South Sea Companies. Two of their 
 vessels, under Dixon and Portlock, which have already been 
 alluded to, the Prince of Wales and Princess Royal, had just 
 arrived at Canton from the north-west coast of America. 
 Meares, apprehending that mutual loss would result from com- 
 petition, entered into a formal agreement with Mr. John 
 Etches, the supercargo of the two ships, making a joint stock 
 of all the vessels and property employed in that trade. The 
 new firm immediately purchased an additional ship, named 
 the Argonaut, and the Prince of Wales being chartered with 
 a cargo of tea to England by the East India Company, the 
 Princess Royal and the Argonaut were ordered to sail to 
 Nootka Sound under the command of Captain Colnett and 
 Captain Hudson. It is indisputable that these vessels were 
 sailing under the British flag, and from the instructions de- 
 livered to Captain Colnett, the Iphigenia and North-west 
 America were henceforward to be under his orders, and to 
 trade on account of the Company. He was accordingly di- 
 rected to send home Captain Douglas in the Argonaut, and 
 to receive from him the Iphigenia and North-west America, 
 shifting their crews, &c. 
 
 " We also authorise you," the instructions go on to state, 
 " to dismiss from your service all persons who shall refuse to 
 
80 MARTINEZ AND IIAEO. 
 
 obey your orders, when they are for our benefit, and in this 
 case we give you to understand, the Princess Royal, America, 
 and other small craft, are always to continue on the coast of 
 America. Their oflicers and people, when the time of their 
 service is up, must be embarked in the returning ship to Chi- 
 na, and on no account whatever will we suffer a deviation 
 from these orders." 
 
 Thenceforward, it appears, that the Iphigenia and North- 
 west America would be considered as sailing under the same 
 character as the other vessels of this Company. 
 
 The steady advance of the Russian establishments along 
 the north-west shores of the Pacific, which had become noto- 
 rious from the publication of Captain Cook's journals, could 
 not but cause great anxiety to the Spanish government. An 
 expedition of inquiry was in consequence sent northward from 
 the port of San Bias in 178S, consisting of two vessels, the 
 Princesa and San Carlos, under the command of Esteban 
 Jose Martinez and Gonzalo Lopez de Haro. They were in- 
 structed to proceed directly to Prince William's Sound, and to 
 visit the various factories of the Russians in that neighbour- 
 hood. Having executed their commission, they returned to 
 San Bias in the autumn of the same year, and reported the 
 results of their voyage to the Viceroy of Mexico. Martinez 
 brought back the information that it was the intention of the 
 Russians to found a settlement at Nootka. The Court of 
 Madrid in consequence addressed a remonstrance to the Em- 
 peror of Russia against the encroachments upon the territo- 
 ries of his Catholic Majesty, which were assumed to extend 
 northward up to Prince William's Sound, and the Viceroy of 
 Mexico in the mean time took measures to prevent the exe- 
 cution of any such schemes. W^ith this object he despatched 
 Martinez and Haro in 1789, with instructions to occupy the 
 port of Nootka by right of the prior discovery of Perez in 
 1774, to treat any Russian or English vessels that might be 
 there with the courtesy which the amicable relations between 
 the several nations required, but to manifest to them the para- 
 mount rights of Spain to make establishments there, and by 
 inference to prevent all foreign establishments which might 
 be prejudicial to Spanish interests. 
 
 The Princesa sailed into Nootka Sound on the 6th of May 
 1789, and found the Iphigenia at Friendly Cove. The San 
 Carlos joined her consort on the 13th. The Columbia mer- 
 chantman, of the United States of America, was lying at an- 
 
SEIZURE OF THE ARGONAUT. 81 
 
 chor at no great distance. Mutual civilities passed between 
 the different vessels till the 15th, when Martinez took posses- 
 sion of the Iphigenia, and transferred her captain and crew 
 as prisoners to his own vessels. He subsequently allowed 
 the Iphigenia to depart, upon an obligation being signed by 
 the captain and supercargo on behalf of Juan Cavallo of 
 Macao, as the owner, to satisfy all demands, in case the Vice- 
 roy of Spain should pronounce her to be a prize, on account 
 of navigating or anchoring in seas or ports belonging to the do- 
 minion of his Catholic Majesty without his permission. Captain 
 Kendrick of the Columbia, and Ingraham his first pilot, were 
 called in to witness this agreement. The Iphigenia was re- 
 leased on the 1st of June, and sailed away directly to Queen 
 Charlotte's Island. On the 8th, the North-west America arrived 
 from a trading voyage along the southern coasts, and was im- 
 mediately taken possession of by Martinez. A few days after- 
 wards the Princess Royal arrived from Macao, bringing in- 
 telligence of the failure of the house of Cavallo, in conse- 
 quence of which Martinez hoisted Spanish colours on board 
 of the North-west America, and employed her to trade along 
 the coast upon his own account. 
 
 The Princess Royal was not however molested by him, 
 but, on the 2d of July, her consort the Argonaut arrived with 
 Captain Colnett, who, upon hearing of the treatment of the 
 Iphigenia and the North-west America, hesitated at first to 
 enter the Sound. His instructions were to found a factory, to 
 be called Fort Pitt, in the most convenient station which he 
 might select, for the purpose of a permanent settlement, and 
 as a centre of trade, round which other stations might be es- 
 tablished. Having at last entered the Sound, he was invited 
 to go on board the Princesa, where an altercation ensued be- 
 tween Martinez and himself, in respect of his object in visiting 
 Nootka, the result of which was the arrest of Colnett himself 
 and the seizure of the Argonaut. Her consort the Princess 
 Royal on her return to Nootka on the 13th of July, was seized 
 in like manner by the Spanish commander. Both these ves- 
 sels were sent as prizes to San Bias, according to Captain 
 Meares' memorial. The Columbia in the mean while had 
 been allowed to depart unmolested, and her consort the Wash- 
 ington, which had been trading along the coast, soon followed 
 her. 
 
 Such is a brief summary of the transactions at Nootka 
 Sound in the course of 1789, which led to the important poli- 
 
82 SPANISH REMONSTRANCE. 
 
 tical discussions, that terminated in the convention of the 
 28th of Oct. 1790, signed at the Escurial. By this conven- 
 tion the future relations of Spain and Great Britain in respect 
 of trade and settlements on the north-west coast of America, 
 were amicably arranged. 
 
 Immediately upon receiving information of these transac- 
 tions from the Viceroy, the Spanish Government hastened to 
 communicate to the Court of London the seizure of a British 
 vessel, (the Argonaut,) and to remonstrate against the attempts 
 of British subjects to make settlements in territories long oc- 
 cupied and frequented by the Spaniards, and against their en- 
 croachments on the exclusive rights of Spain to the fisheries 
 in the South Seas, as guaranteed by Great Britain at the 
 treaty of Utrecht. The British Ministry in reply demanded 
 the immediate restoration of the vessel seized, as preliminary 
 to any discussion as to the claims of Spain. The Spanish 
 Cabinet in answer to this demand stated, that as the Viceroy 
 of Mexico had released the vessel, his Catholic Majesty con- 
 sidered that affair as concluded, without discussing the un- 
 doubted rights of Spain to the exclusive sovereignty, naviga- 
 tion, and commerce in the territories, coasts, and seas, in that 
 part of the world, and that he should be satisfied with Great 
 Britain directing her subjects to respect those rights in future. 
 At this juncture, Meares, who had received from the Colum- 
 bia, on her arrival at Macao, the tidings of the seizure of the 
 North-west America, whose crew returned as passengers in 
 the Columbia, as well as of the Argonaut and the Princess 
 Royal, arrived at London with the necessary documents to 
 lay before the British Government. A full memorial of the 
 transactions at Nootka Sound in 1789, including an account 
 of the earlier commercial voyages of the Nootka and the 
 Felice, was presented to the House of Commons on May 13, 
 1790. It is published in full in the appendix to Meares' Voy- 
 ages, and the substance of it may be found amongst the state 
 papers in the Annual Register for 1790. This was followed 
 by a message from his Majesty to both Houses of Parliament 
 on May 26th, stating that " two vessels belonging to his Ma- 
 jesty's subjects, and navigated under the British flag, and two 
 others, of which the description had not been hitherto suffi- 
 ciently ascertained, had been captured at Nootka Sound by 
 an officer commanding two Spanish ships of war." Having 
 alluded to the substance -of the communications which had 
 passed between the two Governments, and to the British 
 
BRITISH DEMAND. 83 
 
 minister having been directed to make a fresh representation, 
 and to claim full and adequate satisfaction, the message con- 
 cluded with recommending that " such measures should be 
 adopted as would enable his Majesty to support the honour of 
 his crown and the interests of his people." The House of 
 Commons gave their full assent to these recommendations, 
 and readily voted the necessary supplies, so that preparations 
 to maintain the rights of Great Britain by arms were imme- 
 diately commenced. In the mean time a note had been ad- 
 dressed on May 5th, to the Spanish minister in London, to the 
 effect that his Majesty the King of England would take effect- 
 ual measures to prevent his subjects from acting against the 
 just and acknowledged rights of Spain, but that he could not 
 accede to her pretensions of absolute sovereignty, commerce, 
 and navigation, and that he should consider it his duty to pro- 
 tect his subjects in the enjoyments of the right of fishery in 
 the Pacific Ocean. In accordance with the foregoing an- 
 swers, the British charge-d'affaires at Madrid made a demand, 
 on May 16th, for the restitution of the Princess Royal, and 
 for reparation proportionate to the losses and injuries sus- 
 tained by English subjects trading under the British flag. He 
 further asserted for them " an indisputable right to the enjoy- 
 ment of a free and uninterrupted navigation, commerce, and 
 fishery, and to the possession of such establishments as they 
 should form with the consent of the natives of the country, not 
 previously occupied by any of the European nations." The 
 substance of these communications was embodied in the me- 
 morial of the Court of Spain, delivered on June 13th to the 
 British ambassador at Madrid. It appeared, however, from a 
 subsequent reply from the Spanish minister, the Conde de 
 Florida Blanca, that Spain maintained, " that the detention 
 of the vessels was made in a port, upon a coast, or in a bay 
 of Spanish America, the commerce or navigation of which 
 belonged exclusively to Spain by treaties with all nations, 
 even England herself. The nature of these exclusive claims 
 of Spain had been already notified to all the courts of Europe, 
 in a declaration made by his Catholic Majesty on June 4th, 
 where the words are made use of, " in the name of the King, 
 his sovereignty, navigation, and exclusive commerce to the 
 continent and islands of the South Sea, it is the manner in 
 which Spain, in speaking of the Indies, has always used these 
 words : that is to say, to the continent, islands and seas, 
 which belong, to his Majesty, so far as discoveries have been 
 
84 SPANISH MEMORIAL. 
 
 made, and secured to him by treaties and immemorial posses- 
 sion, and uniformly acquiesced in, notwithstanding some in- 
 fringements by individuals, who have been punished upon 
 knowledge of their offences. And the King sets up no pre- 
 tensions to any possessions, the right to which he cannot prove 
 by irrefragable titles." 
 
 What were the treaties and immemorial possession upon 
 which Spain rested her claims, was more explicitly stated in 
 the Spanish Memorial of the 13fh June. The chief reliance 
 seemed to have been placed upon the 8th article of the Treaty 
 of Utrecht, as concluded between Great Britain and Spain in 
 1713, by which it was agreed, that the exercise of navigation 
 and commerce to the Spanish West Indies should remain in 
 the same state in which it was in the time of Charles II. of 
 Spain ; that no permission should at any time be given to any 
 nation, under any pretext whatever, to trade into the domin- 
 ions subject to the Crown of Spain in America, excepting as 
 already specially provided for by treaties : moreover. Great 
 Britain undertook "to aid and assist the Spaniards in re-es- 
 tablishing the ancient limits of their dominions in the West 
 Indies, in the exact situation in which they had been in the 
 time of Charles II." The extent of the Spanish territories, 
 commerce, and dominions on the continent of America was 
 further alleged in this memorial to have been clearly laid 
 down and authenticated by a variety of documents and formal 
 acts of possession about the year 1692, in the reign of the 
 above-mentioned monarch : all attempted usurpations since 
 that period had been successfully resisted, and reiterated acts 
 of taking possession by Spanish vessels, had preserved the 
 rights of Spain to her dominions, which she had extended to 
 the limits of the Russian establishments within Prince Wil- 
 liam's Sound. It was still further alleged, that the Viceroys 
 of Peru and New Spain had of late directed the western 
 coasts of America, and the islands and seas adjacent, to be 
 more frequently explored, in order to check the growing in- 
 crease of smuggling, and that it was in one of the usual tours 
 of inspection of the coasts of California that the commanding 
 officer of a Spanish ship had detained the English vessels in 
 Nootka Sound, as having arrived there, not for the purposes of 
 trade, but with the object of " founding a settlement and forti- 
 fying it." 
 
 From these negotiations it would appear, that Spain claimed 
 for herself an exclusive title to the entire north-western coast 
 
DECLARATIONS OF THE TWO POWERS. 85 
 
 of America, up to Prince William's Sound, as having been 
 discovered by her, and such discovery having been secured 
 to her by treaties, and repeated acts of taking possession. 
 She consequently denied the right of any other nation (for 
 almost all the nations of Europe had been parties to the Treaty 
 of Utrecht) to make establishments within the limits of Span- 
 ish America. Great Britain, on the other hand, maintained 
 her right " to a free and undisturbed navigation, commerce, 
 and fishery, and to the possession of any establishment which 
 she might form with the consent of the natives of the country, 
 where such country was not previously occupied by any of the 
 European nations." These may be considered to have been 
 the two questions at issue between Great Britain and Spain, 
 which were set at rest by the subsequent convention. 
 
 That such was the object of the convention, is evident 
 from the tenor of two documents exchanged between the two 
 courts on the 24th of July, 1790, the first of which contained 
 a declaration, on the part of his Catholic Majesty, of his en- 
 gagement to make full restitution of all the British vessels 
 which were captured at Nootka, and to indemnify the parties 
 with an understanding that it should not prejudice "the ulte- 
 rior discussion of any right which his Majesty might claim to 
 form an exclusive establishment at the port of Nootka ;" 
 whilst on the part of his Britannic Majesty a counter-decla- 
 ration was issued, accepting the declaration of his Catholic 
 Majesty, together with the performance of the engagements 
 contained therein, as a full and entire satisfaction for the 
 injury of which his Majesty complained; with the reservation 
 that neither the declaration nor its acceptance " shall preju- 
 dice in any respect the right which his Majesty might claim 
 to any establishment which his subjects might have formed, 
 or should be desirous of forming in future, in the said Bay of 
 Nootka." Mr. Greenhow's mode of stating the substance of 
 these papers (p. 206) is calculated to give an erroneous no- 
 tion of the state in which they left the question. He adds, 
 " it being, however, at the same time admitted and expressed 
 on both sides, that the Spanish declaration was not to preclude 
 or prejudice the ulterior discussion of any right which his 
 Catholic Majesty might claim to form an exclusive establish- 
 ment at Nootka Sound." This is not a correct statement of 
 the transaction, as the reservation was expressed in the de- 
 claration of his Catholic Majesty; but so far was his Britan- 
 nic Majesty from admitting it in the counter-declaration, that 
 5 
 
88 CONVENTION OF THK ESCUEIAL. 
 
 he met it directly with a special reservation of the rights of 
 his own subjects, as already set forth. 
 
 Had the crown of Spain been able to rely upon assistance 
 from France, in accordance with the treaty of 1701, known 
 as the Family Compact, there can be no doubt that she would 
 have attempted to maintain by arms her claim of exclusive 
 sovereignty over " all the coast to the north of Western Ame- 
 rica on the side of the South Sea, as far as beyond what is 
 called Prince William's Sound, which is in the sixty-first de- 
 gree ;" but her formal application for assistance was not 
 attended with the result which the mutual engagements of the 
 tw^o crowns would have secured at an earlier period. The 
 National Assembly, to which body Louis XVI. was obliged, 
 under the altered state of political circumstances in France, 
 to submit the letter of the King of Spain, was rather disposed 
 to avail itself of the opportunity which seemed to present itself 
 for substituting a national treaty between the two nations for 
 the Family Compact between the two Courts ; and though it 
 decreed that the naval armaments of France should be in- 
 creased in accordance with the increased armaments of other 
 European powers, it made no direct promise of assistance to 
 Spain. On the contrary, the Diplomatic Committee of the 
 National Assembly resolved rather to strengthen the relations 
 of France with England, and to prevent a war, if possible ; 
 and with this object they co-operated with the agent of Mr. 
 Pitt in Paris (Tomline's Life of Pitt, c. xii.) and with M. de 
 Montmorenci, the French Secretary for Foreign Aflairs^ in 
 furthering the peaceable adjustment of the questions in dis- 
 pute. 
 
 Convention between His Britannic Majesty and the King of 
 Spain^ signed at the Escurial the '^-ith of October, 1790. 
 (Annual Register, 17U0, p. 303. Martens, Recueil de 
 Traitesjt. iv., p. 4:}3.) 
 
 "Their Britannic and Catholic Majesties, being desirous 
 of terminating, by a speedy and solid agreement, the dilTer- 
 ences which have lately arisen between the two crowns, 
 have judged that the best way of attaining this salutary object 
 would be that of an Hinica!)ie arrangement, which, setting 
 aside all retrospective discussion of the ri<ihts and pretensions 
 of the two parties, bhuuld tin their respective situation for the 
 
CONVENTION OF THE ESCURIAL. 87 
 
 future on a basis conformable to their true interests, as well 
 as to the mutual desire with which their said Majesties are ani- 
 mated, of establishing with each other, in every thing and in all 
 places, the most perfect friendship, harmony, and good corres- 
 pondence. In this view, they have named and constituted for 
 their plenipotentiaries ; to wit, on the part of his Britannic 
 Majesty, Alleyne Fitz-Herbert, Esq., one of his said Majesty's 
 Privy Council in Great Britain and Ireland, and his Ambas- 
 sador Extraordinary and Plenipotentiary to his Catholic Ma- 
 jesty ; and, on the part of his Catholic Majesty, Don Joseph 
 Monino, Count of Florida Blanca, Knight Grand Cross of the 
 Royal Spanish Order of Charles III., Councillor of State to 
 his said Majesty, and his Principal Secretary of State, and of 
 the Despatches ; who, after having communicated to each other 
 their respective full powers, have agreed upon the following 
 articles : — 
 
 "Art. I. It is agreed that the buildings and iracts of land 
 situated on the north-west coast of the continent of North 
 America, or on islands adjacent to that continent, of which 
 the subjects of his Britannic Majesty were dispossessed, about 
 the month of April, 1789, by a Spanish officer, shall be restor- 
 ed to the said Britannic subjects. 
 
 " Art. II. And further, that a just reparation shall be 
 made, according to the nature of the case, for all acts of vio- 
 lence or hostility which may have been committed, subsequent 
 to the month of April, 1789, by the subjects of either of the 
 contracting parties against the subjects of the other ; and 
 that, in case any of the said respective subjects shall, since 
 the same period, have been forcibly dispossessed of their 
 lands, buildings, vessels, merchandise, or other property 
 whatever, on the said continent, or on the seas or islands ad- 
 jacent, they shall be re-established in the possessicn thereof, or 
 a just compensation shall be made to them for the losses which 
 they shall have sustained. 
 
 " Art. III. And in order to strengthen the bonds of friend- 
 ship, 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 mo- 
 lested, 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 carryin^pa their commerce with the natives of the 
 
88 CONVENTION OF THE ESCURIAL. 
 
 country, or of making seltlcmeiils there ; the whole subject, 
 nevertheless, to the restrictions and provisions specilied in 
 the three following articles. 
 
 " Art. IV. His Britannic Majesty engages to take the 
 most effectual measures to prevent the navigation and fishery 
 of his subjects in the Pacific Ocean, or in the South Seas, 
 from being made a pretext for illicit trade with the Spanish 
 settlements ; and with this view, it is moreover expressly stip- 
 ulated, that British subjects shall not navigate, or carry on 
 their fishery in the said seas, within the space of ten sea 
 leagues from any part of the coasts already occupied hy Spain. 
 
 " Art. V. It is agreed, that 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, situated to the 
 north of the parts of the said coast already occupied by Spain, 
 wherever the subjects of either of the two powers shall have 
 made settlements since the month of April, 1789, or shall 
 hereafter make any, the subjects of the other shall have free 
 access, and shall carry on their trade, without any disturbance 
 or molestation. 
 
 '* Art. VI. It is further agreed, with respect to the east- 
 ern and western coasts of South America, and to the islands 
 adjacent, that no settlement shall be formed hereafter, by the 
 respective subjects, in such parts of those coasts as are situat- 
 ed to the south of those parts of the same coasts and of the 
 islands adjacent, which are already occupied by Spain : pro- 
 vided that the said respective subjects shall retain the liberty 
 of landing on the coasts and islands so situated, for the pur- 
 poses of their fishery, and of erecting thereon huts, and other 
 temporary buildings, serving only for those purposes. 
 
 *' Art. VII. In all cases of complaint or infraction of the 
 articles of the present convention, the officers of either party, 
 without permitting themselves previously to commit any vio- 
 lence or act of force, shall be bound to make an exact report 
 of the afiair, and of its circumstances, to their respective 
 courts, who will terminate such differences in an amicable 
 manner. 
 
 " Art. VIII. The present convention shall be ratified 
 and confirmed in the space of six weeks, to be computed 
 from the day of its signature, or sooner, if it can be done. 
 
 "In witness whereof, we the undersigned Plenipotentiaries 
 of their Britannic and Catholic Majesties, have, in their 
 
ARTICLES OF THE CONVENTION. 89 
 
 names, and in virtue of our respective full powers, signed the 
 present convention, and set thereto the seals of our arms. 
 
 " Done at the Palace of St. Laurence, the twenty-eighth 
 of October, one thousand seven hundred and ninety. 
 " Alleyne Fitz-Herbert. 
 (L. S.) 
 " El Conde de Florida Blanca." 
 (L. S.) 
 
 On examining this convention, it will be seen that the first 
 article confirmed the positive engagement which his Catholic 
 Majesty had contracted by his declaration of the 24th July : 
 that the second contained an engagement for both parties to 
 make reparation mutually for any contingent acts of violence 
 or hostility : that the third defined for the future the mutual 
 rights of the two contracting parties, in respect to the ques- 
 tions which remained in dispute after the exchange of the 
 declaration and counter-declaration. By this article the navi- 
 gation and fisheries of the Pacific Ocean and the South Seas 
 were declared to be free to the subjects of the two crowns, 
 and their mutual right of trading with the natives on the coast, 
 and of making seitlements in places not already occupied,, was 
 fully recognised, subject to certain restrictions in the follow- 
 ing articles. 
 
 By the fourth of these, his Britannic Majesty bound himself 
 to prevent his subjects carrying on an illicit trade with the 
 Spanish settlements, and engaged that they should not ap- 
 proach within ten miles of the coasts already occupied by 
 Spain. 
 
 By the fifth it was agreed that, in the places to be restored 
 to the British, and in whatever parts of the north-western 
 coasts of America, or the adjacent islands, situate to the north 
 of the parts already occupied by Spain, the subjects of either 
 power should make settlements, the subjects of the other 
 should have free commercial access. 
 
 By the sixth it was agreed, that no settlements should be 
 made by either power on the eastern and western coasts of 
 South America, or the adjacent islands, south of the parts 
 already occupied by Spain ; but that they should be open to 
 the temporary occupation of the subjects of either power, for 
 the purposes of their fishery. 
 
 By the seventh, provisions were made for the amicable 
 arrangement of any differences which might arise from in- 
 
^0 MR. GREEXHOW'S VIEWS. 
 
 fringemenfs of the convention ; and, by the eighth, the time 
 of ratification was settled. 
 
 It thus appears that, by the third article, the right insisted 
 upon i>y the British charge-d'affaires at Madrid, in the Memo- 
 rial of the 16th of May, was fully acknowledged ; namely, 
 "the indisputable right to the enjoyment of a free and unin- 
 terrupted navigation, commerce, and fishery, and to the pos- 
 session of such establishments as they should form, with the 
 consent of the natives of the country, not previously occupied 
 by any of the European nations." In accordance with this 
 view, it is observed in Schoell's Histoire Abregee des Traites 
 de Paix : " En consequence il fut signe le 28 Octobre, au 
 palais de I'Escurial, une convention par laquelle la question 
 litigieuse fut entierement decidee en faveur de la Grande 
 Bretagne." 
 
 Thus, indeed, after a struggle of more than two hundred 
 years, the principles which Great Britain had asserted in the 
 reign of Elizabeth, were at last recognised by Spain : the 
 unlimited pretensions of the Spanish crown to exclusive 
 dominion in the Western Indies, founded upon the bull of 
 Alexander VI., were restrained within definite limits ; and 
 occupation, or actual possession, was acknowledged to be 
 henceforward the only test between the two crowns, in 
 respect to each other, of territorial title on the west coast of 
 North America. 
 
 Mr. Greenhow states, (p. 215,) that both parties were, by 
 the convention, equally excluded from settling in the vacant 
 coasts of South America ; and from exercising that jurisdic- 
 tion which is essential to political sovereignty, over any spot 
 north of the most northern Spanish settlement in the Pacific. 
 The former part of this statement is perfectly correct, but the 
 latter is questionable, in the form in which it is set forth. 
 The right of trading with the natives, or of making settle- 
 ments in places not already occupied, was secured to both 
 parties by the third article : whereas, in places where the 
 subjects of either power should have made settlements, free 
 access for carrying on their trade was all that was guaran- 
 teed to the subjects of the other party. This then was merely 
 a commercial privilege, not inconsistent with that territorial 
 sovereignty, which, by the practice of nations, would attend 
 upon the occupation or actual possession of lands hitherto 
 vacant. In fact, when Mr. Greenhow observes, in continua- 
 tion, that " the convention determined nothing regarding the 
 
91 
 
 rights of either to the sovereignty of any portion of America, 
 except so far as it may imply an abrogation, or rather suspen- 
 sion of all such claims on both sides, to any of those coasts ;" 
 he negatives his previous supposition that the convention 
 precluded the acquisition of territorial sovereignty by either 
 party. The general law of nations would regulate this ques- 
 tion, if the convention determined nothing : and, by that 
 general law, " when a nation takes possession of a country 
 to which no prior owner can lay claim, it is considered as 
 acquiring the empire or sovereignty of it at the same time 
 with the domain.''^ The discussion of this question, however, 
 as being one of law, not of fact, will be more properly 
 deferred. 
 
 One object of Vancouver's mission, as already observed, 
 was to receive from the Spanish officers such lands or build- 
 ings as were to be restored to the subjects of his Britannic 
 Majesty, in conformity to the first article of the convention, 
 and instructions were forwarded to him, after his departure, 
 through Lieutenant Hergest, in the Daedalus, to that effect. 
 The letter of Count Florida Blanca to the commandant at 
 Nootka, which Lieutenant Hergest carried out with him, is 
 to be found in the Introduction to Vancouver's Voyage, p. 
 xxvii. " Li conformity to the first article of the convention of 
 28th October, 1790, between our Court and that of London, 
 ( ) you will give directions that his Britan- 
 nic Majesty's officer, who shall deliver this letter, shall imme- 
 diately be put into possession of the buildings, and districts 
 or parcels of land, which were occupied by the subjects of 
 that sovereign in April 1789, as well in the port of Nootka 
 or of St. Lawrence, as in the other, said to be called Port 
 Cox, and to be situated about sixteen leagues distant from the 
 former, to the southward ; and that such parcels or districts 
 of land of which the English subjects were dispossessed, be 
 restored to the said officer, in case the Spaniards should not 
 have given them up." 
 
 Vancouver, however, on his arrival, found himself unable 
 to acquiesce in the terms proposed by Seiior Quadra, the 
 Spanish commandant, and despatched Lieutenant Mudge, by 
 way of China, to England, for more explicit instructions. 
 Lieutenant Broughton was subsequently directed to proceed 
 home in 1793, with a similar object. On his arrival he was 
 sent by the British Government to Madrid ; and on his return 
 to London, vas ordered to proceed to Nootka, as captain of 
 
92 belsham's history of England. 
 
 his Majesty's sloop Providence, with Mr. Mudge as his first 
 lieutenant, to receive possession of the territories to be 
 restored to the British, in case they should not have been 
 previously given up. His own account, published in his Voy- 
 age, p. 50, is unfortunately meagre in the extreme. On 17th 
 March, 1796, he anchored in the Sound, where Maquinna 
 and another chief brought him several letters, dated March, 
 1795, which informed him " that Captain Vancouver sailed 
 from Monterey the 1st December, 1794, for England, and 
 that the Spaniards had delivered up the port of Nootka, &c., 
 to Lieutenant Pierce of the marines, agreeably to the mode of 
 restitution settled between the two Courts. A letter from the 
 Spanish officer. Brigadier Alava, informed him of their sail- 
 ing, in March, 1795, from thence." 
 
 It is evidently to this transaction that Schoell, in his edition 
 of Koch's Histoire Abregee des Traites de Paix, t. i., ch. xxiv., 
 refers, when he writes, — " L'execution de la Convention du 
 28 Octobre 1790, eprouva, du reste, des difficultes qui la 
 retardcrent jusqu'en 1795. Elles furent terminees le 23 Mars 
 de cette annce, sur les lieux memes, par le brigadier Espag- 
 nol Alava, et le lieutenant Anglais Poara, (Pierce?) qui 
 echangerent des declarations dans le golfe de Nootka meme. 
 Apres que le fort Espagnol fut rase, les Espagnols s'em- 
 barquerent, et le pavilion Anglais y fut plante en signe de 
 possession." M. Koch does not give his authority, but it 
 was most probably Spanish, from the modification which the 
 name of the British lieutenant has undergone. On the other 
 hand, Mr. Greenhow cites a passage from Belsham's History 
 of England, to this effect* — "It is nevertheless certain, from 
 the most authentic information, that the Spanish flag flying at 
 Nootka was never struck, and that the territory has been vir- 
 tually relinquished by Great Britain." It ought, however, to 
 have been stated, that this remark occurs in a note to Bel- 
 sham's work, without any clew to the authentic information 
 on which he professed to rely, and with a special reference 
 to a work of no authority — L'Histoire de Frederic-Guillaume 
 II., Roi de Prusse, par le Comte de Scgur ; — in which it is 
 stated, that the determination of the French Convention to 
 maintain at all risk the Family Compact, intimidated Great 
 Britain into being satisfied with the mere restitution of the 
 vessels which had been captured with her subjects, while 
 engaged in a contraband trade with the Spanish settlements ! 
 It further appears from an official Spanish paper, to which 
 
M. DUFLOT DE MOFRAS. 93 
 
 Mr. Greenhow alludes in a note (p. 257,) as existing in the 
 library of Congress at Washington, intitled " Instruccion 
 reservada del Reyno de Nueva Espaiia, que el Exmo Senor 
 Virey Conde de Revillagigedo dio a su sucesor el Exmo 
 Seilor Marques de Brancitbrte, en el ario de 1704," that or- 
 ders had been sent to the commandant at Nootka to abandon 
 the place, agreeably to a royal dictamen. The negative re- 
 mark, therefore, of Mr. Belsham, cannot disprove the fact of 
 the restitution of Nootka to the British, against the positive 
 statements of so many high authorities : it may, indeed, be 
 conclusive of his own ignorance of the fact, and so far his 
 integrity may remain unimpeached ; but it must be at the 
 expense of his character for accurate research and careful 
 statement — the most valuable, as well as the most necessary 
 qualifications of a writer of history. 
 
 M. Dufiot de Mofras, in his recent work, intitled, " Explo- 
 ration du Territoire de I'Oregon," torn, ii., p. 145, further 
 states, that Lieutenant Pierce passed through Mexico. " Par 
 suite de quelques fausses interpretations du traite de 28 Oct. 
 1790, les Espagnols ne remirent point immediatement Noot- 
 ka aux Anglais, et ce ne fut qu'en Mars 1795, que le com- 
 mandant Espagnol opera cette cession entre les mains du 
 Lieutenant Pierce, de I'infanterie de marine Anglaise, venu 
 tout expres de Londres par le Mexique, pour hater I'execution 
 du traite de TEscurial." 
 
 5* 
 
94 
 
 CHAPTER VI. 
 
 THE OREGON OR COLUMBIA RIVER. 
 
 The Oregon, or Great River of the West, discovered by D Bruno Heceta, 
 in 1775. Ensenada do Heceta. — Rio de San Roque. — Meares' Voyage 
 in the FeHce, in 1788. — Deception Bay. — Vancouver's Mission in 1791. 
 — Vancouver vindicated against Mr. Greenhow in respect to Cape Or- 
 ford — Vancouver passes through Deception Bay. — Meets Captain Gray 
 in the Merchant-ship Columbia. — Gray passes the Bar of the Oregon, 
 and gives it the Name of the Columbia River. — Extract from the Log- 
 book of the Columbia. — Vancouver defended. — The Chatham crosses 
 the Bar, and finds the Schooner Jenny, from Bristol, inside. — The Dis- 
 covery driven out to Sea. — Lieutenant Broughton ascends the River 
 with his Boats, 110 miles from its Mouth. — Point Vancouver. — The 
 Cascades — The Dalles. — The Chutes or Falls of the Columbia. — Mr. 
 Greenhovv's Criticism of Lieutenant Broughton's Nomenclature. — Lord 
 Stoweli's Definition of the Mouth of a Uiver. — Extent of Gray's Re- 
 searches. — Tlie Discovery of the Columbia River a progressive Dis- 
 covery. — Doctrine as to the Discovery of a River, set up by the United 
 States, denied by Great Britain. 
 
 It is generally admitted that the first discovery of the lo- 
 cality where the Oregon or Great River of the West emptied 
 itself into the sea, was made in 1775, by D. Bruno Heceta, 
 as he was coasting homewards to Monterey, having parted 
 with his companion Bodega in about the 50th degree of north 
 latitude. We find in consequence that in the charts pub- 
 lished at Mexico soon after his return, the inlet, which he 
 named Ensenada de la Asuncion, is called Ensenada de He- 
 ceta, and the river which was supposed to empty itself there, 
 is marked as the Rio de San Roque. The discovery however 
 of this river by Heceta was certainly the veriest shadow of a 
 discovery, as will be evident from his own report, which Mr. 
 Greenhow has annexed in the Appendix to his work. Having 
 stated that on the 17th of August he discovered a large bay, 
 to which he gave the name of the Bay of the Assumption, in 
 about 40^ 17' N. L., he proceeds to say, that having placed 
 his ship nearly midway between the two capes which formed 
 the extremities of the bay, ho found the currents and eddies 
 
HE ares' voyage. 95 
 
 too strong for his vessel to contend with in s'afety. *' These 
 currents and eddies of water caused me to believe that the 
 place is the mouth of some great river, or of some passage 
 into another sea." In fact, Heceta did not ascertain that the 
 water of this current was not sea-water, and as he himself 
 says, had little difficulty in conceiving that the inlet might 
 be the same with the passage mentioned by De Fuca, since 
 he was satisfied no such straits as those described by De 
 Fuca existed between 47° and 48°. 
 
 Although, however, the discovery of this river was !=o es- 
 sentially imperfect, being attended by no exploration, as hard- 
 ly to warrant the admission of it into charts which professed 
 to be well authenticated, stiil its existence was believed upon 
 the evidence which Heceta's report furnished, and as subse- 
 quent examination has confirmed its existence, the Spaniards 
 seem Avarranted in claiming the credit of the discovery for 
 their countryman. 
 
 No further notice of this supposed river occurs until Meares' 
 voyage in the Felice, in 1788. Meares, according to his 
 published narrative, reached the bay of the river on July 6th, 
 and steered into it, with every expectation of finding there, 
 according to the Spanish accounts, a good port. In this hope, 
 however, he was disappointed, as breakers were observed, as 
 he approached, extending across the bay. He in consequence 
 gave to the northern headland the name of Cape Disappoint- 
 ment, and to the bay itself the title of Deception Bay. " We 
 can now with safety assert," he writes, " that no such river 
 as that of Saint Roc exists, as laid dov/n in the Spanish 
 charts." Meares had been led from these charts to expect 
 that he should find a place of shelter for his ship at the mouth 
 of this river, and Heceta, in his plan, upon which the Spanish 
 charts were based, had supposed that there v\^as a port there 
 formed by an island : so that, as " it blew very strong in the 
 offing, and a great westerly swell tumbled in on the land," it 
 was not surprising that Meares should have concluded, from 
 there being no opening in the breakers, that there was no 
 such port, and therefore no such river. 
 
 There can be no doubt that the locality of the bay which 
 Meares reconnoitred was the locality of the Ensenada de 
 Heceta ; and on the other hand it cannot be gainsayed, that 
 Meares was right in concluding that there was no such river 
 as that of St. Roque, as laid down in the Spanish charts, for 
 the context of Meares' narrative explains the meaning cf the 
 
96 BRITISH SETTLEMENT IN 1827. 
 
 Avord "such." Meares states beforehand, that they were in 
 expectation that the distant land beyond the promontory would 
 prove to be " the Cape St. Roque of the Spaniards, near 
 ■which they ircre said to have found a good port.^^ The river, 
 then, of St. Roque, such as it was laid down in Spanish charts, 
 was a river " near which was a good port," and the disap- 
 pointment which Meares handed down to posterity by the 
 name which he gave to the promontory, was that of 7iot oh- 
 iaining a place of shelter for his vessel. Meares, it must be 
 remembered, was not in search of the Straits of Anian. He 
 had already in the previous month of June ascertained the 
 existence of the Straits of Juan de Fuca, which he supposed 
 might be one of the passages into Hudson's Bay : but he was 
 in search of some harbour or port, where the ship could re- 
 main in safety, while the boats might be employed in explor- 
 ing the coast. (Voyage, p. 166.) Such a harbour indeed 
 Deception Bay most assuredly does not supply, and though 
 Baker's Bay within the bar of the river affords on the north 
 side a good and secure anchorage, yet, as Lieut. Broughton 
 subsequently ascertained, " the heavy and confused swell that 
 rolls in over the shallow entrance, and breaks in three fath- 
 oms water, renders the place between Baker's Bay and Chi- 
 nock Point a very indifferent roadstead." 
 
 Mr. Greenhow, (p. 177,) in his observations on Meares' 
 voyage, writes thus : " Yet, strange though it may appear, 
 the commissioners appointed by the British Government in 
 1826, to treat with the plenipotentiary of the United States at 
 London, on the subject of the claims of the respective parties 
 to territories on the northwest side of America, insisted that 
 Meares on this occasion discovered the Great River Colum- 
 bia, which actually enters the Pacilic at Deception Bay, and 
 cite, in proof of their assertion, the very parts of the narrative 
 above extracted," the substance of which has just been re- 
 ferred to. Mr. Greenhow, however, has attached rather too 
 great an extent to the statement of the British commissioners, 
 which is annexed to the protocol of the sixth conference, held 
 at London, Dec. 16th, 1826. The documents relative to this 
 negotiation have not as yet been published by the British 
 Government, but they were made known to the Congress of 
 the United States, with the message of President Adams, on 
 Dec. 12, 1827, and Mr Greenhow has annexed the British 
 statement in his Appendix. 
 
 " Great Britain," it is there said, " can show that in 1788, 
 
MEARES' LOG-BOOK. 97 
 
 that is, four years before Gray entered the mouth of the Co- 
 lumbia riveTj Mr. Meares, a lieutenant of the Royal Navy, 
 who had been sent by the East India Company on a trading 
 expedition to the northwest coast of America, had already 
 minutely explored the coast from the 49th to the 45th degree 
 of 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 north head- 
 land of which he gave the name of Cape Disappointment, a 
 name which it bears to this day." 
 
 The language of this statement, it will be seen, is carefully 
 worded, so as not to go beyond the actual facts narrated in 
 Meares' Voyage ; and further, on referring to the maps of the 
 coasts and harbours which he visited, it continues, " in which 
 every part of the coast in question, including the Bay of the 
 Columbia {into which the log expressly states that Meares en- 
 tered,) is minutely laid down, its delineation tallying in almost 
 every particular with Vancouver's subsequent survey, and 
 with the description found in all the best maps of that part of 
 the world adopted at this moment." 
 
 The entry in Meares' log-book is as follows : " July 6, lat. 
 46° 10' ; long. 235° 24' ; northerly ; strong gales, a great 
 sea. Passed Cape Disappointment, into Deception Bay, and 
 hauled out again, and passed Quicksand Bay, Cape Gren- 
 ville, and Cape Look-out." 
 
 There is, therefore, nothing strange in the view which the 
 British Commissioners really insisted upon, though it is 
 strange that Mr. Greenhow should have misconstrued their 
 statement, particularly as, in a paragraph almost immediately 
 following, which will be referred to in full in its proper place, 
 they readily admit that Mr. Gray, four years afterwards, " was 
 the first to ascertain that this bay formed the outlet of a great 
 river." 
 
 The further examination of these coasts by British subjects 
 was suspended for a short time, as already seen, by the inter- 
 ference of the Spanish authorities. After, however, that Spain 
 had definitively abandoned her pretensions to exclusive rights 
 along the entire northwest coast of America, as far as Prince 
 William's Sound, and agreed, by the third article of the Con- 
 vention of 1790, that occupation should be the test of territo- 
 rial title, the British Government judged it expedient " to as- 
 certain with as much precision as possible the number, ex- 
 
98 CAPE okfohd. 
 
 tent, and situation of any settlement which had been made 
 within the limits of GO*' and 30° north latitude by any Euro- 
 pean nation, and the time when such settlement was made. 
 With this object, amongst others more immediately connected 
 with the execution of the first article of the Convention, Cap- 
 tain George Vancouver was despatched from Deptford with 
 two vessels on January 6, 1791, and having wintered at the 
 Sandwich Islands, where he was instructed to wait for further 
 orders in reference to the restoration of the buildings and tracts 
 of land, of which British subjects had been dispossessed at 
 Nootka, he arrived off the coast of America on April 17, 1792, 
 in about 39° 30'. He had received special instructions to 
 ascertain the direction and extent of all such considerable in- 
 lets, whether made by arms of the sea, or by the mouths of 
 great rivers, which might be likely to lead to, or facilitate in 
 any considerable degree, an intercourse, for the purposes of 
 commerce, between the northwest coast and the country upon 
 the opposite side of the continent, which are inhabited or oc- 
 cupied by his Majesty's subjects ;" but he was expressly re- 
 quired and directed "not to pursue any inlet or river further 
 than it should appear to be navigable by vessels of such bur- 
 den as might safely navigate the Pacific Ocean." (Introduc- 
 tion to Vancouver's Voyage, p. xix.) 
 
 Having made a headland, which he supposed to be Cape 
 Mendocino, Vancouver directed his course northward, examin- 
 ing carefully the line of coast, and taking soundings as he pro- 
 ceeded. In about latitude 42^ 52', longitude 235° 35', he re- 
 marked a low projecting headland, apparently composed of 
 hlach craggy rocks in the space between the woods and the 
 wash of the sea, and covered with wood nearly to the edge of 
 the surf, which, as forming a very conspicuous point, he dis- 
 tinguished by the name of Cape Orford. Mr. Greenhow has 
 allowed his antipathy to Vancouver to lead him into an erro- 
 neous statement in respect to this headland. Vancouver (V^ol. 
 i., p. 205, April 25, 1792) writes : " Some of us were of opin- 
 ion that this was the Cape Blanco of JMartin d'Aguilar ; its 
 latitude, however, differed greatly from that in which Cape 
 Blanco is placed by that navigator ; and its dark appearance, 
 which might probably be occasioned by the haziness of the 
 weather, did not seem to entitle it to the appellation of Cape 
 Blanco." He afterwards goes on to say, that at noon, when 
 Cape Orford was visible astern, nearly in the horizon, they 
 had a projecting headland in sight on the westward, which 
 
MR. GREENHOW's REMARKS. 99 
 
 he considered to be Cape Blanco. He here ranged along the 
 coast, at the distance of about a league, in hope of discover- 
 ing the asserted river of D'Aguilar. "About three in the 
 afternoon, we passed within a league of the cape above men- 
 tioned, and at about half that distance from some breakers that 
 lie to the westward of it. This cape, though not so project- 
 ing a point as Cape Orford, is nevertheless a conspicuous one, 
 particularly when seen from the north, being formed by a 
 round hill, on high perpendicular cliffs, some of which are 
 white, a considerable height from the level of the sea." It 
 appeared to Vancouver to correspond in several of its features 
 with Captain Cook's description of Cape Gregory, though its 
 latitude, which he determined to be 43° 23', did not agree 
 with that assigned by Captain Cook to that headland ; but 
 he again states, that there was a " probability of its being 
 also the Cape Blanco of D'Aguilar, if land hereabouts 
 the latter ever saw ;" and that " a compact white sandy 
 beach commenced, where the rocky cliffs composing it termi- 
 nate." 
 
 Mr. Greenhov/ remarks : " Near the 43d degree of lati- 
 tude, they sought in vain for the river, which Martin d'Aguilar 
 was said to have seen, entering the Pacific thereabouts, in 
 1603 : and they appeared inclined to admit as identical with 
 the Cape Blanco of that navigator, a high, whitish promontory, 
 in the latitude of 42° 52', to which, however, they did not 
 scruple to assign the name of Cape Orford." Had these ob- 
 servations been made in reference to Cape Gregory, the high 
 cliffs of which are described by Vancouver as white, they 
 would have been intelligible ; but, directed as they are by Mr. 
 Greenhow against a headland which Vancouver expressly de- 
 scribes as a " wedge-like, low, perpendicular cliff, composed 
 of black craggy rock, with breakers upon sunken rocks about 
 four miles distant, in soundings of forty-five fathoms, black 
 sandy bottom," they expose Mr. Greenhow himself to the 
 charge of not being sufficiently scrupulous when assailing a 
 writer, towards whom he confesses that he feels considerable 
 animosity. 
 
 Having reached Cape Lookout, in 45° 32' N. L., Vancou- 
 ver examined with attention the portion of coast which Meares 
 had seen. About ten leagues to the north of this headland, 
 the mountainous inland country descends suddenly to a mod- 
 erate height, and were it not covered with lofty timber, might 
 be deemed low land. Noon, " on the 27th of April, brought 
 
100 MR. ROBERT GRAY 
 
 them in sight of a conspicuous point of land, composed of a 
 cluster of hummocks, moderately high, and projecting into the 
 sea from the low land above mentioned. Tlie hummocks are 
 barren, and steep near the sea, but their tops thinly covered 
 with wood. On the south side of this promontory was the ap- 
 pearance of an inlet, or small river, the land behind not indi- 
 cating it to be of any great extent ; nor did it seem accessible 
 to vessels of our burden, as the breakers extended from the 
 above point two or three miles into the ocean, until they joined 
 those on the beach, three or four leagues further south. On 
 reference to Mr. Meares' description of the coast south of 
 this promontory, I was at first induced to believe it to be Cape 
 Shoalwater ; but on ascertaining its localities, I presumed it 
 to be that which he calls Cape Disappointment, and the open- 
 ing south of it Deception Bay. This cape was found to be in 
 latitude of 46° 19', longitude 236° 6' east. The sea had now 
 changed from its natural to river -coloured water, the probable 
 consequence of some streams falling into the bay, or into the 
 opening north of it, through the low land. Not considering 
 this opening worthy of our attention, I continued our pursuit 
 to the northwest, being desirous to embrace the advantages of 
 the now-prevailing breeze and pleasant weather, so favour- 
 able to our examination of the coasts." 
 
 The purport of Vancouver's observations in the passage 
 just cited will not be correctly appreciated, unless his instruc- 
 tions are kept in mind, which directed his attention exclu- 
 sively to such inlets or rivers which should appear to be navi- 
 gable to sea-going vessels, and be likely to facilitate in any 
 considerable degree a communication with the northwest 
 coast. Vancouver seems to have advanced a step beyond 
 Ileceta in observing the river -coloured water, and so determin- 
 ing the inlet not to be a strait of the sea ; but he rightly de- 
 cided that the opening in the north part of the bay was not 
 worthy of attention, either in respect to his main object of dis- 
 covering a water-communication with the northwest coast, or 
 to the prospect of its affording a certain shelter to sea-going 
 vessels. 
 
 Vancouver, as he approached De Fuca's Straits on 29th 
 April, when off Cape Flattery, fell in with the merchant ship 
 Columbia, commanded by Mr. Robert Gray, which had sailed 
 from Boston on the 28th Sept., 1788. Captain Gray had for- 
 merly commanded the Washington, when that vessel and the 
 Columbia, commanded by Captain John Kcndrick, visited 
 
CROSSES THE BAR OF THE COLUMBIA. 101 
 
 Nootka in 1788. Having given Vancouver some information 
 respecting De Fuca's Straits, he stated that he had "been off 
 the mouth of a river in the latitude of 46° 10', where the out- 
 set, or reflux, was so strong as to prevent his entering it for 
 nine days. This," continues Vancouver, " was probably the 
 opening passed by us on the forenoon of the 27th, and was 
 apparently then inaccessible, not from the current, but from 
 the breakers that extended across it." Gray at this time had 
 not succeeded in passing the bar at the mouth of the Colum- 
 bia. After parting from Vancouver, he continued his course 
 to the southward for the purposes of his summer trade. The 
 extract from his own log-book, which Mr. Greenhow has in- 
 serted in his Appendix, will furnish the best account of his 
 proceedings : — "May 11th, at 4 a. 3I. saw the entrance of our 
 desired port bearing E.S.E., distance six leagues; in steering 
 sails, and hauled our wind in shore. At 8 a. m., being a lit- 
 tle to windward of the entrance into the harbour, bore away 
 and run in E.N.E. between the breakers, having from five to 
 seven fathoms water. When we came over the bar, we found 
 this to be a large river of fresh water, up which we steered." 
 
 In the British statement it is admitted that " Mr. Gray, 
 finding himself in the bay formed by the discharge of the wa- 
 ters of the Columbia into the Pacific, was the first to ascer- 
 tain that this bay formed the outlet of a great river — a discov- 
 ery which had escaped Lieutenant Meares, when in 1788, 
 four years before, he entered the same bay." 
 
 This passage has been quoted to show that the claim of 
 Captain Gray to the honour of having first crossed the bar of 
 the river has not been impeached by the British Commis- 
 sioners. He gave to the river the name of his own vessel, the 
 Columbia. 
 
 The Columbia remained at anchor on the 12th and 13th. 
 On the 14th of May, Gray weighed anchor, and stood up the 
 river N.E. by E. 
 
 The log-book of the Columbia furnishes the following ex- 
 tract : — 
 
 " We found the channel very narrow. At 4 p.m. we had 
 sailed upwards of twelve or fifteen miles, when the chan e. 
 was so very narrow that it was almost impossible to keep in 
 it, having from three to eighteen fathoms water, sandy bot- 
 tom. At half-past four the ship took ground, but she did no. 
 stay long before she came off, without any assistance. Wd 
 backed her off stern-foremost into three fathoms, and let go 
 
102 VANCOUVER DEPENDED 
 
 the small bower, and moved ship with kedge and hawser. 
 The jolly-boat was sent to sound the channel out, but found 
 it not navigable any further up ; so of course ire inust have taken 
 the wrong channel. So ends, with rainy weather ; many na- 
 tives alongside." On the following day Gray unmoored, and 
 dropped down the river with the tide. On the 18th he made 
 the latitude of the entrance to be 46° 17' north. On the 20th 
 he succeeded, after some difficulty, in beating over the bar 
 out to sea. 
 
 This log-book, the authenticity of which is vouched for by 
 Mr. Bulfinch, of Boston, one of the owners of the Columbia, 
 affords the best evidence that Captain Gray's claim is limited 
 to the discovery of the mouth of the Columbia, a discovery dif- 
 ferent indeed in degree from Heceta's or Vancouver's, and en- 
 titled to higher consideration, but not different in hind. It 
 must be remembered that the problem to be solved was the 
 discovery of the Great River of the West, but this problem 
 was surely not solved by Gray, who expressly states that the 
 channel which he explored was not navigable any further up 
 than twelve or fifteen miles from the entrance ; " so of 
 course," he adds, " we must have taken the wrong channel." 
 But such a description would hardly have convinced the world 
 that Gray had succeeded in discovering the Great River, un- 
 less Lieutenant Broughton had subsequently succeeded in en- 
 tering the right channel, and had explored its course for the 
 distance of more than one hundred miles from the sea. But 
 the reputation of this enterprising man needs no fictitious lau- 
 rels. He was decidedly the first to solve the difficult ques- 
 tion of their being a passage, such as it is, over the bar of the 
 river. 
 
 Mr. Greenhow, in commenting upon Gray's discovery, ob- 
 serves, " Had Gray, after parting with the English ships, not 
 returned to the river, and ascended it as he did, there is every 
 reason to believe that it would have long remained unknown ; 
 for the assertion of Vancouver, that no opening, harbour, or 
 place of refuge for vessels was to be found between Cape 
 Mendocino and the Strait of Fuca, and that this part of the 
 coast formed one compact, solid, and nearly straight barrier 
 against the sea, would have served completely to overthrow the 
 evidence of the American fur-trader, and to prevent any further 
 attempts to examine those shores, or even to approach them." 
 
 Now the evidence of the American fur-trader, had he not 
 returned to the river, would have needed no Vancouver to 
 
BROUGHTON CROSSES THE BAR. 108 
 
 overthrow it, for it would have amounted to this, that Gray- 
 had been off the mouth of a river for nine days, without being 
 able to enter it ; whereas Vancouver's own statement would 
 have been, that on the south side of Cape Disappointment 
 there was the appearance of an inlet or small river, " which 
 did not however seem accessible for vessels of our burthen," 
 as breakers extended right across it. Mr. Greenhow misre- 
 presents Vancouver, when he states that Meares' opinion was 
 subscribed without qualification by Vancouver, for Vancouver 
 carefully limits his opinion of the river to its being inacces- 
 sible to vessels of equal burthen with his own sloop of war, 
 the Discovery. 
 
 Gray, after entering the Columbia, appears to have returned 
 to Nootka, and to have given to Seiior Quadra, the Spanish 
 commandant, a sketch of the river. Vancouver, having at- 
 tempted in vain to conclude a satisfactory arrangement with 
 Quadra in respect to the fulfilment of the first article of the 
 Nootka Convention, determined to re-examine the coast of 
 New Albion. With this object he sailed southward in the 
 Discovery, accompanied by the Chatham and the Daedalus. 
 The Daedalus having been left to explore Gray's harbour in 
 46° 53', the Discovery and Chatham proceeded round Cape 
 Disappointment, and the Chatham, under Lieutenant Brough- 
 ton, was directed to lead into the Columbia river, and to sig- 
 nalize her consort if only four fathoms water should be found 
 over the bar. The Discovery followed the Chatham, till Van- 
 couver found the water to shoal to three fathoms, with break- 
 ers all around, -which induced him to haul off to the west- 
 ward, and anchor outside the bar in ten fathoms. The Chat- 
 ham, in the meantime, cast anchor in the midst of the 
 breakers, where she rode in four fathoms, with the surf break- 
 ing over her. "My former opinion," writes Vancouver, " of 
 this port being inaccessible to vessels of our burthen was now 
 fully confirmed, with this exception, that in very fine weather, 
 with moderate winds and a smooth sea, vessels not exceeding 
 400 tons might, so far as we were able to judge, gain admit- 
 tance." It maybe observed that the vessels of the Hudson's 
 Bay Company, by which the commerce of this part of the 
 country is almost exclusively carried on, do not exceed 360 
 tons, and draw only fourteen feet water. Captain Wilkes, 
 in the United States Exploring Expedition, vol. iv., p. 489, 
 speaks of a vessel of from 500 to 600 tons, the Lausanne, hav- 
 ing navigated the Columbia ; on the other hand, the Starling, 
 
104 DANGERS OP THE NAVIGATION. 
 
 which accompanied the Sulphur exploring vessel, under Cap- 
 tain Belcher, in July, 1839, left her rudder on the bar, and the 
 American corvette, the Peacock, which attempted to enter the 
 river in July, 1841, was lost in very fine weather, having 
 been drifted amongst the breakers by the set of the current. 
 
 When it is known that the vessels of the Hudson's Bay 
 Company have been obliged to lie-to off the mouth of the 
 Columbia for upwards of two months before they could ven- 
 ture to cross the bar, and that vessels have been detained in- 
 side the bar for upwards of six weeks, it must be acknow- 
 ledged that Vancouver's declaration of the probable character 
 of the river has not fallen very wide of the mark. 
 
 On the next day the Chatham succeeded, with the flood- 
 tide, in leading through the channel, and anchored in a toler- 
 ably snug cove inside Cape Disappointment ; but the Discov- 
 ery, not having made so much way, was driven out by a 
 strong ebb tide into 13 fathoms water, where she anchored 
 for the night, and on the following day was forced by a gale 
 of wind to stand out to sea, and to abandon all hope of regain- 
 ing the river. 
 
 On the Chatham rounding the inner point of Cape Disap- 
 pointment, they were surprised to hear a gun fired from a ves- 
 sel, which hoisted English colours, and proved to be the Jen- 
 ny, a small schooner of Bristol, commanded by Mr. James 
 Baker, which had sailed from Nootka Sound direct to Eng- 
 land, before Vancouver started. This cove or bay inside 
 Cape Disappointment was in consequence named, by Lieut. 
 Broughton, Baker's Bay, which name it retains, and it ap- 
 peared from Captain Baker's account that this was not the 
 first occasion of his entering the river, but that he had beeii 
 there in the earlier part of the year. 
 
 The Chatham in the meantime proceeded up the inlet, and 
 having in her course grounded for a short time on a shoal, 
 anchored ultimately a little below the bay which had termi- 
 nated Gray's researches, to which Gray had given his own 
 name in his chart. The sketch of this, with which Vancou- 
 ver had been favoured by the Spanish commandant at Nootka, 
 M^as found by Broughton not to resemble much what it pur- 
 ported to represent, nor did it mark the shoal on which the 
 Chatham grounded, though it was an extensive one, lying in 
 mid-channel. The bay, for instance, which Lieut. Brough- 
 ton found to be not more than fifteen miles from Cape Disap- 
 pointment, was, according to the sketch, thirty-six miles dis- 
 
POINT VANCOUVER. 105 
 
 tant. Broughton left the Chatham here, and determined to 
 pursue the further examination of the channel in the cutter 
 and the launch. 
 
 At the distance of about twenty-five miles from the sea, 
 Broughton found the stream narrow rather suddenly to about 
 half a mile in breadth, which seemed to warrant him in con- 
 sidering the lower part, (the width of which was from three 
 to seven miles,) to be a sound or inlet, and the true entrance 
 of the river itself to commence from the point where it con- 
 tracted itself. Broughton continued his ascent for seven days, 
 making but slow progress against a strong stream. At the 
 end of that time he was obliged to return from want of pro- 
 visions, having reached a point which he concluded to be 
 about 100 miles distant from the Chatham's anchorage, and 
 nearly 120 from the sea. He was the more readily recon- 
 ciled to the abandonment of any further examination, " be- 
 cause even thus far the river could hardly be considered as 
 navigable for shipping." Previously, however, to his depar 
 ture, he formally " took possession of the river and the coun- 
 try in its vicinity in his Britannic Majesty's name, having 
 every reason to believe that the subjects of no other civilised 
 nation or state had ever entered this river before." Brough- 
 ton had fallen in with large parties of Indians in his ascent 
 of the river, and had been kindly received by them. Amongst 
 these was a friendly old chief, who accompanied them almost 
 throughout the voyage, and who assisted at the ceremony and 
 drank his Majesty's health on the occasion." It may be rea- 
 sonably suspected that this worthy old chief would have as 
 readily joined the next comers in drinking the health of the 
 King of Spain, or the President of the United States. From 
 him Broughton endeavoured to obtain further information 
 respecting the upper country. " The little that could be 
 understood was, that higher up the river, they would be pre- 
 vented from passing by falls. This was explained by taking 
 water up in his hands, and imitating the manner of its falling 
 from rocks, pointing at the same time to the place where the 
 river rises, indicating that its source in that direction would 
 be found at a great distance." 
 
 The furthest angle of the river which Broughton reached 
 was called by him Point Vancouver, and upon it stands in the 
 present day Fort Vancouver, the chief establishment of the 
 Hudson's Bay Company. A little above this are the Cas- 
 cades, a series of falls and rajiids extending more than half a 
 
106 
 
 mile, which form the limit of the tide-way ; about thirty miles 
 higher up are the Dalles, where the river rushes rapidly be- 
 tween vast masses of rocks, and about four miles further are 
 the Chutes or Falls of the Columbia, where the river first 
 enters the gap in the Cascade mountains, through which it 
 finds its way to the ocean. Lieutenant Broughton, having 
 occupied twelve days in the examination of the channel, pre- 
 pared to join the Discovery without delay ; but for four days 
 the surf broke across the passage of the bar with such vio- 
 lence, as to leave no apparent opening. At last he succeeded 
 in beating out, the Jenny schooner leading, as her command- 
 er Mr. Baker was better acquainted with the course of the 
 channel, and after nearly losing their launch and the boat- 
 keeper in the surf, they once more reached the open sea. 
 Such is the summary of the account, which may be perused in 
 full in the second volume of Vancouver's Voyage. 
 
 Mr. Greenhow (p. 248) considers that the distinction which 
 Broughton and Vancouver made " between the upper and 
 lower portion of the Columbia, is entirely destitute of founda- 
 tion, and at variance with the principles of our whole geogra- 
 phical nomenclature. Inlets and sounds," he continues, " are 
 arms of the sea running up ijito the land, and their waters, 
 being supplied from the sea, are necessarily salt ; the waters 
 of the Columbia are on the contrary generally fresh and pal- 
 atable within ten miles of the Pacific, the violence and over- 
 bearing force of the current being sufficient to prevent the fur- 
 ther ingress of the ocean. The question appears at first to be 
 of no consequence : the following extract from Vancouver's 
 Journal will, however, serve to show that the quibble was de- 
 vised by the British navigators, with the unworthy object of 
 depriving Gray of the merits of his discovery : — 'Previously 
 to his (Broughton's) departure, he formally took possession of 
 the river, and the country in its vicinity, in his Britannic Ma- 
 jesty's name, having every reason to believe that the subjects 
 of no other civilised nation or state had ever entered this river 
 before. In this opinion he was confirmed by Mr. Gray's 
 sketch, in which it does not appear that Mr. Gray either saw 
 or ever was within five leagues of its entrance.' This unjust 
 view has been adopted by the British Government and wri- 
 ters, and also, doubtless from inadvertency, by some distin- 
 guished authors in the United States. It may, indeed, be con- 
 sidered fortunate for Gray, that by communicating the particu- 
 lars of hig discoveries, as ho did, to Quadra, he secured an 
 
VANCOUVER VINDICATED AGAINST MK. GSEENHOW. 107 
 
 unimpeachable witness of his claims : had he not done so, 
 the Avorld would probably never have learned that a citizen of 
 the United States was the first to enter the greatest river 
 flowing from America into the Pacific, and to find the only 
 safe harbour on the long line of coast between Port San Fran- 
 cisco and the Strait of Fuca." 
 
 Mr. Greenhow may be perfectly justified in disputing the 
 propriety of Lt. Eroughton's distinction. The words of the 
 latter are, — " Between the ocean and that which should pro- 
 perly be considered the entrance of the river, is a space from 
 three to seven miles wide, intricate to navigate on account of 
 the shoals that extend nearly from side to side, and it ought 
 rather to be considered as a sound than as constituting a part 
 of the river, since the entrance into the river, which they 
 reached about dark, was found not to be more than half a 
 mile wide, formed by the contracting shores of the sound." 
 It may fairly be admiited that the ordinary use of the terms 
 " sound," or " inlet," warrants the verbal criticism of Mr. 
 Greenhow, and that they are more usually employed to dis- 
 tinguish arms of the sea where there is no fresh water, or 
 tideways outside the bars of rivers. Lieutenant Broughton, 
 if we may judge from the context would have been more 
 correct had he used the term " estuary" instead of " sound," 
 for, " in common understanding," as Lord Stowell has ob- 
 served, " the embouchure or mouth of a river is that spot 
 where the river enters the open space to which the sea flows, 
 and where the points of the coast project no further." (Twee 
 Gebroeden, 3 Robinson's Reports, p. 34.) At the same time, 
 after a careful perusal of Vancouver's journal, a protest must 
 be entered against any reader of that work, particularly 
 against one who occupies the position which Mr. Greenhow 
 fills, attributing such motives to the British navigator, or in- 
 sinuating such a probability as that Gray's discovery would 
 have been suppressed by Vancouver, had not Gray fortunately 
 secured Quadra as an unimpeachable witness to it. Mr. 
 Greenhow's jealousy for the fame of his countryman may 
 be excusable up to a certain point, but when he states that 
 Vancouver "did not hesitate to adopt unworthy means to 
 deprive the Americans of the reputation which they had justly 
 earned by their labours in explorina;, and to blacken their 
 characters as individuals," he has allowed an unreasonable 
 sensitiveness to hurry him into the commission of the very 
 fault which he censures iu others, and has laid himself open 
 
108 PROGRESSIVE DISCOVERY OF THE COLUMBIA RIVER. 
 
 to the identical charge, mutatis mutandis, which he has set up 
 against Vancouver. 
 
 Had there been any suhslantial misrepresentation on the 
 part of Vancouver in respect to what Gray actually did dis- 
 cover, " a want of good faith" might have been reasonably 
 imputed to him. Happily, however, for Vancouver's memory, 
 the extract from the log-book of the Columbia bears out all 
 the facts which Lieutenant Broughton alleges as to the extent 
 of Gray's researches. " From this point," the latter says, 
 alluding to a remarkable projecting point on the southern 
 side, appearing like an island, a little above Point George, to 
 which the name of Tongue Point was given, " was seen the 
 centre of a deep bay, lying at the distance of seven miles N. 
 26 E. This bay terminated the researches of Mr. Gray ; and 
 to commemorate his discovery, it was called after him, Gray's 
 Bay." "In Mr. Gray's sketch," Broughton further informs 
 us, " an anchor was placed in this bay," so that he does not 
 attempt in any way to misrepresent the locality of the spot 
 where Gray's researches terminated. Lieutenant Broughton 
 certainly denies the correctness of the sketch in respect to 
 the distance of this bay from the entrance of the river. " It 
 was not more," he writes, " than fifteen miles from Cape Dis- 
 appointment, though according to the sketch it measures 
 thirty.six miles." But the log-book itself confirms approxi- 
 matively Lieutenant Broughton's statement, for it makes the 
 distance of the spot where Gray brought up his vessel to be 
 about twenty-two or twenty-five miles from the entrance 
 between the bars, and Cape Disappointment is six miles dis- 
 tant from the entrance, so that there must have been an error 
 in the sketch, if we admit the accuracy of the log-book. 
 
 The result of this inquiry seems fully to warrant the posi- 
 tion which the British commissioners insisted on in 1826-7, 
 that the discovery of the Columbia river was a •progressive 
 discovery. Heceta made the first step in 1775, when he dis- 
 covered the bay, and concluded that " the place was the mouth 
 of some great river, or of some passage to another sea ;" but 
 Heceta's report was not made public by the Spanish authori- 
 ties. Meares, in 1788, confirmed Heceta's discovery of the 
 bay, but impugned the correctness of the Spanish charts, as 
 to there being a river there with a good port ; his Voyages 
 were published in London in 1790. Vancouver, having seen 
 Meares' account before he left England, examined the bay in 
 April 1792, and at that time came to the conclusion that, though 
 
 i 
 
CLAIM or THE UNITED STATES. 109 
 
 there was river-coloured water in the bay, yet the opening 
 was not worthy of attention, as being inaccessible to vessels 
 of the same burden as the Discovery: his account was pub- 
 lished in 1798. Gray, in the May following, after having on 
 ii loruier occasion beat about in the bay tor nine days ineffec- 
 tually, succeeded on his second visit in passing the bar, ana 
 explored the estuary tor more than twenty miles : the extract, 
 of his log-book, which relates the particulars, was not made 
 public before 1816. Lieutenant Broughton in the same year 
 may be considered to have completed the discovery of the 
 river, by ascending it for more than eighty miles above the 
 limits of Gray's researches, almost to the foot of the Cascades, 
 where the tide ceases to be felt : the particulars of this expe- 
 dition were published in the 2nd vol. of Vancouver's Voyage, 
 in 1798. 
 
 The plenipotentiary of the United States, Mr. Gallatin, on 
 the other hand, repudiated the notion of Gray's enterprise 
 being considered as only a step in the progress of discovery, 
 and maintained that the discovery of the river belonged ex- 
 clusively to the United States ; that Quadra (or he should 
 have said, Heceta) had overlooked it ; that Meares had like- 
 wise failed, and Vancouver had been not more fortunate ; 
 and that Broughton's merit consisted merely in performing 
 with fidelity the mechanical duty of taking the soundings 100 
 miles up its course. Upon the fact of this asserted first dis- 
 covery in 1792, followed by the settlement of Astoria in 1812, 
 Mr. Rush, announced, for the first time, in 1824, "that the 
 United States claimed in their own right, and in their abso- 
 lute and exclusive sovereignty and dominion, the whole of the 
 country west of the Rocky Mountains from the 42d to at least 
 as far up as the 51st degree of north latitude." "It had been 
 ascertained that the Columbia extended by the River Mult- 
 nomah to as low as 42 degrees north, and by Clarke's river 
 to a point as high up as 51 degrees, if not beyond that point; 
 and to this entire range of country, contiguous to the original 
 dominions, and made a part of it by the almost intermingling 
 waters of each, the United States," he said, "considered their 
 title as established, by all the principles that had ever been 
 applied on this subject by the powers of Europe to settlements 
 in the American hemisphere. I asserted," he continued, 
 " that a nation discovering a country, by entering the mouth 
 of its principal river at the sea coast, must necessarily be 
 allowed to claim and hold as great an extent of the interior 
 
 6 
 
110 DENIED BY GREAT BKITAIN. 
 
 country as was described by the course of such principal 
 river, and its tributary streams." 
 
 Great Britain formally entered her dissent to such a claim, 
 denying that such a principle or usage had been ever recog- 
 nised amongst the nations of Europe, or that the expedition of 
 Captain Gray, being one of a purely mercantile character, 
 was entitled to carry with it such important national conse- 
 quences, (British and Foreign State Papers, 1825-6.) 
 
 In the subsequent discussions of 1826-7, Great Britain con- 
 sidered it equally due to herself and to other powers to renew 
 her protest against the doctrine of the United States, whilst 
 on the other hand the United States continued to maintain, 
 that Gray's discovery of the Columbia river gave, by the ac- 
 knowledged law and usage of nations, a right to the whole 
 country drained by that river and its tributary streams. 
 
 Having now passed in review the main facts connected 
 with the discovery and occupation of the Oregon territory, we 
 may proceed to consider the general principles of international 
 law which regulate territorial title. 
 
Ill 
 
 CHAPTER VII. 
 
 ON THE ACQUISITION OF TERRITORY BY OCCUPATION. 
 
 Connexion of the Sovereignty of a Nation with the Domain. — Vattel. 
 The Sovereignty and Eminent Domain (Dominium eminens) attend 
 on Settlement by a Nation. — Settlement by an Individual limited to the 
 Acquisition of the Useful Domain (Dominium utile.) A Nation may 
 occupy a Country by its Agents, as by settling a Colony. Kluber's 
 Droits des Gens. — The Occupation must be the Act of the State. — 
 Occupation constitutes a perfect Title. — Bracton de Legibus. — Wolff's 
 Jus Gentium. — Acts accessorial to Occupation, such as Discovery, 
 Settlement, &c., create only an imperfect Title. 
 
 " When a nation takes possession of a country to which no 
 prior owner can lay claim, it is considered as acquiring the 
 empire or sovereignty over it, at the same time with the do- 
 main. For, since the nation is free and independent, it can 
 have no intention, in settling in a country, to leave to others 
 the rights of command, or any of those rights that constitute 
 sovereignty? The whole space over which a nation ex- 
 tends its government, becomes the seat of its jurisdiction, and 
 is called its territory.'^ (Vattel, b. i., § 205.) 
 
 The acquisition of sovereignty, therefore, attends as a 
 necessary consequence upon the establishment of a nation in 
 a country. But a nation may establish itself in a country, 
 either by immigration in a body, or by sending forth a colony ; 
 and when a nation takes possession of a vacant country, and 
 settles a colony there, " that country, though separated from 
 the principal establishment or mother country, naturally be- 
 comes a part of the state, equally with its ancient posses- 
 sions, (Vattel, b. i., § 210.) 
 
 The right o^ domain in a nation corresponds to the right of 
 property in an individual. But every nation that governs 
 itself by its own authority and laws, without dependence on 
 any foreign power, is a sovereign state ; and when it acts as 
 a nation, it acts in a sovereign capacity. When a nation 
 therefore occupies a vacant country, it imports its sovereignty 
 with it, and its sovereignty entitles it not merely to a dis- 
 
112 TERRITORIAL OCCUPATION. 
 
 posing power over all the property within it, which is termed 
 its Eminent Domain, but likewise to an exclusive right of 
 command in all places of the country which it has taken pos- 
 session ot. In this respect, then, a nation differs from an 
 individual, tfiat, aitnougn an mdependent individual may settio 
 in a country which he finds without an owner, and there 
 possess an independent domain (the dominium utile, as dis- 
 tinguished from the dominium eminens,) yet he cannot arro- 
 gate to himself an exclusive right to the country, or to the 
 empire over it. His occupation of it would be, as against 
 other nations, rash and ridiculous (Vattel, b. ii., § 96 ;) and it 
 would be termed, in the language of the Jus Gentium, a 
 " temeraria occupatio, quae nullum juris effectum parere 
 potest," (Wolffii Jus Gentium, § 308.) 
 
 A nation, however, may delegate its sovereign authority to 
 one or more of its members for the occupation of a vacant 
 country, equally as for other purposes, where it cannot act in 
 a body ; in such cases the practice of nations allows it to be 
 represented by an agent. Thus the right of settling a colony 
 is a right of occupation by an agent. The colonists represent 
 the nation which has sent them forth, and occupy their new 
 country in the name of the mother country. But the colonists 
 must be sent forth hy the public authority of the nation, other- 
 wise they will possess no national character, but will be con- 
 sidered to be a body o^ emigrants, who have abandoned their 
 country. 
 
 Thus, Kluber, in his " Droit des Gens Modernes de 
 I'Europe :" — " Un etat peut acquerir des choses qui n'appar- 
 tiennent a personne (res nullius) par I'occupation (originaire ;) 
 les biens d'autrui au moyen de conventions (occupation 
 derivative.) .... Pour que Voccupation soit legitime, la 
 chose doit etre susceptible d'une proprieto exclusive ; elle ne 
 doit appartenir a personne ; Vetat doit avoir Vintention iVen 
 acquerir la proprictc, ct en prendre possession (the State ought 
 to have an intention to acquire the right of property in it, and 
 to take possession of it ;) c'est a dire, la mettre entierement 
 a sa disposition et dans son pouvoir physique." 
 
 Occupation, then, in this sense of the word, denotes the 
 taking possession of a territory previously vacant, which has 
 either always been unoccupied, or, if ever occupied, has been 
 since abandoned. It constitutes a perfect title, and its foun- 
 dation may l)e referred to an axiom of natural law : " Quod 
 enim ante nullius est, id ratione naturali occupanti conceditur." 
 
AN ACT OP THE STATE. 113 
 
 (Dig. 1. 3, D. de Acq. Rer. Dom.) This principle, engrafted 
 into the Roman law, was as fully recognised by Bracton and 
 by Fleta : — " Jure autem gentium sive naturali dominia 
 rerum acquiruntur multis modis. Imprimis, per occupationem 
 eorum, quae non sunt in bonis alicujus, et quae nunc sunt 
 ipsius regis de jure civili, et non communia ut olim, (Bracton 
 de Leg,, 1. ii., c. 1.) 
 
 Amongst professed writers upon international law, Wolff, 
 who is justly considered as the founder of the science, and 
 who, in his voluminous writings, furnished the stores out of 
 which Vattel compiled his " Law of Nations," has set forth 
 so clearly this principle, as that upon which title by occupa- 
 tion is based, that his words may be quoted from Luzac's 
 French translation of his " Institutions du Droit de la Nature 
 et des Gens :" — 
 
 " On appelle occupation, un fait par lequel quelqu'un declare 
 qu'une chose qui n'est k personne doit etre a lui, et la reduit 
 en tel etat qu'elle pent etre sa chose. II parait de la, que le 
 droit d'occuper une chose, ou de s'en emparer, appartient na- 
 turellement a chacun indifferemment, ou bien que c'est un droit 
 commun de tons les hommes, et comme on appelle maniere 
 primitive d'acquerir, celle par laquelle on acquiert le domaine 
 d'une chose qui n'est a personne, il s'ensuit que Voccupation 
 est la maniere 'primitive d'acquerir.'^ (Part ii., ch. ii., § ccx.) 
 
 As, however, the term occupation has come to signify in 
 common parlance rather a temporary holding than a perma- 
 nent possession,^ — e. g., the occupation of Ancona by the 
 French, the occupation of Lisbon by the English, the occupa- 
 tion of the Four Legations by the Austrians, there is an incon- 
 venience in its ambiguity, and from this circumstance it has 
 resulted, that occupancy is frequently employed to designate 
 what is, properly speaking, occupation. This however is to 
 be regretted, as the word occupancy is required in its own 
 sense to mark the right to take possession, as distinct from 
 the right to keep possession, — the jus possidendi from the jus 
 possessionis, — the jus ad rem, as civilians would say, from 
 the jus in re. Thus the right of a nation to colonise a given 
 territory to the exclusion of other nations is a right of occu- 
 pancy ; the right of the colonists to exclude foreigners from 
 their settlements would be a right of occupation. 
 
 Mr. Wheaton, in his Elements of International Law, (1. i., 
 chap, iv., p. 205,) says, " The exclusive right of every inde- 
 pendent state to its territory and other property is founded 
 
11 ACTS ACCESSORIAL TO OCCUPATION. 
 
 upon the title originally acquired by occupancy, and subse- 
 quently confirmed by the presumption arising from the lapse 
 of time, or by treaties and other compacts of foreign states." 
 
 It may be gathered from these writers, that to constitute a 
 valid territorial title by occupation, the territory must be pre- 
 viously vacant {res mdlius,) and the state must intend to take 
 and maintain possession : and that the vacancy of the territory 
 may be presumed from the absence of inhabitants, and will 
 be placed beyond question by the acquiescence of other na- 
 tions. If those conditions are fulfilled, the proprietary title 
 which results is a perfect title against all other nations. 
 
 There are however several acts, that are accessorial to 
 occupation, which do not separately constitute a perfect title. 
 Such acts are Discovery, Settlement, Demarcation. Thus, 
 discovery, may not be accompanied with any intention to 
 occupy, or may not be followed up by any act of occupation 
 within a reasonable time ; settlement may be effected in terri- 
 tory not vacant ; boundaries may be marked out which en- 
 croach upon the territory of others ; so that acts of this kind 
 will, separately, only found an imperfect or conditional title : 
 their combination, however, under given circumstances, may 
 establish an absolute and perfect title. 
 
115 
 
 CHAPTER VIII. 
 
 ON TITLE BY DISCOVERY. 
 
 Discovery not recognised by the Roman law. — WolfF. — The Discovery 
 must be notiiied. — Illustration of the Principle in reference to Nootka 
 Sound- — Vattel. — Discovery must be by virtue of a Commission from 
 the Sovereign. — Must not be a transient Act. — Martens' Precis du Droit 
 des Gens. — Kluber. — Bynkershoek. — Mr Wheaton. — Practice of Na- 
 tions. — Queen Elizabeth. — Negotiations between Great Britain and the 
 United States, in 1824. — Nootka Sound Controversy.^ — Discussions be- 
 tween the United States and Russia, in 182S. — Declaration of British 
 Commissioners, in 1826. — Mr. Gallatin's View. — Conditions attached 
 to Discovery. — No second Discovery. — WolfF. — Lord Stowell. — Pro- 
 gressive Discovery. — Dormant Discoveries inoperative for Title. 
 
 Among the acts which are accessorial to occupation, the 
 chief is Discovery. The title, however, which results from 
 discovery, is only an imperfect title. It is not recognised in 
 the Roman law, nor has it a place in the systems of Grotius 
 or PufFendorfF. The principle, however, upon which it is 
 based is noticed by Wolff: — 
 
 " Pareillement, si quelqu'un renferme un fonds de terre dans 
 des limites, ou la destine a quelque usage par un acte non 
 passager, pu qui,^ se tenant sur ce fonds limite, il dise en pre- 
 sence d'autres hommes, qu'il veut que ce fonds soit a lui, il 
 s'empare." (Institutes du Droit des Gens, § 213.) 
 
 To this passage M. Luzac has appended the following note, 
 pointing out the application of the principle to international 
 relations : — 
 
 " Nous ne trouvons pas cette occupation dans le droit Re- 
 main. C'est sur elle que sent fondes les droits que les 
 puissances s'attribuent, en vertu des decouvertes." 
 
 It will be seen from the text of M. Wolff, that the intention 
 to take possession at the time of discovery must be declared. 
 The comity of nations, then, presumes that the execution will 
 follow the intention. But the reason of the thing requires that 
 the discovery should be notified at the time when it takes 
 place, otherwise, where actual possession has not ensued, the 
 presumption will be altogether against a discovery, or if there 
 
lie NOOTKA BOUND. 
 
 had been a discovery, that it was a mere passing act, that the 
 territory was never taken possession of, or if so, was aban- 
 doned immediately. Unless then the intention to appropriate 
 can be presumed from the announcement of the discovery, 
 which the comity of nations will respect, — if the first comer 
 has not taken actual possession, but has passed on, the pre- 
 sumption will be that he never intended to appropriate the 
 territory. Thus a discovery, when it has been concealed 
 from other nations, has never been recognised as a good 
 title : it is an inoperative act. 
 
 A case in point may be cited to illustrate the application of 
 this principle. Mr. Greenhow (p. 116) observes, in refer- 
 ence to the voyage of Perez in 1775, — "The Government of 
 Spain perhaps acted wisely in concealing the accounts of this 
 expedition, which reflected little honour on the courage or the 
 science of the navigators : but it has thereby deprived itself 
 of the means of establishing beyond question the claim of 
 Perez to the discovery of the important harbour called Nootka 
 Sound, which is now, by general consent, assigned to Captain 
 Cook." 
 
 Vattel (b. i., 1. xviii., § 207) discusses this title at large : — 
 
 " All mankind have an equal right to things that have not 
 yet fallen into the possession of any one, and those things be- 
 long to the person who first takes possession of them. When 
 therefore a nation finds a country uninhabited, and without an 
 owner, it may lawfully take possession of it, and after it has 
 siifficiently made knoum its will in this respect, it cannot be 
 deprived of it by another nation. Thus navigators going on 
 voyages of discovery, furnished with a commission from their 
 sovereign, and meeting with islands or other lands in a desert 
 state, have taken possession of them in the name of the na- 
 tion ; and this title has been usually respected, provided it 
 was soon after followed by a real possession." 
 
 According to this statement, the act of discovery must be 
 sanctioned by a commission from the sovereign, and the will 
 of the nation to take possession must be by its agent suffi- 
 ciently made known. What acts should be respected by the 
 courtesy of nations, and be held sufficient to make known for- 
 mally the will of a nation to avail itself of a discovery, has 
 been a subject of much dispute. The tendency, however, 
 both of writers and statesmen, has been to limit rather than 
 to extend the title by discovery, ever since the Papal Bulls of 
 
TRANSIENT VISITS. 117 
 
 the 16th century enlarged it to an inconvenient extent, to the 
 exclusive benefit of two favoured nations. 
 
 Thus Vattel : — " The law of nations will, therefore, not 
 acknowledge the property and sovereignty of a nation over 
 any uninhabited countries except those of which it has really 
 taken actual possession, in which it has formed settlements, or of 
 which it makes actual use. In effect, when navigators have 
 met with desert countries in which those of other nations had, 
 in their transient visits, erected some monuments to show 
 their having taken possession of them, they have paid as little 
 regard to that empty ceremony as to the regulation of the 
 Popes, who divided a great part of the world between the 
 crowns of Castile and Portugal." 
 
 To the same purport, Martens, in his Precis du Droit des 
 Gens, § 37 : — 
 
 Suppose que I'occupation soit possible, il faut encore qu'elle 
 ait eu lieu effectivement, — que le fait de la prise de possession 
 ait concouru avec la volonte manifesto de s'en approprier 
 I'objet. La simple declaration de volonte d'une nation ne 
 suffit pas non plus qu'une donation papale, ou une convention 
 entre deux nations pour imposer a d'autres le devoir de 
 s'abstenir de I'usage ou de I'occupation de I'objet en question. 
 Le simple fait d'avoir ete le premier a decouvrir ou a visiter 
 une ile, &;c., abandonnee ensuite, semble insuffisant, memo de 
 I'aveu des nations, tant qii'on n'a point laisse de traces 
 permanentes de possession et de volonte, et ce n'est pas sans 
 raison qu'on a souvent dispute entre les nations, comme entre 
 les philosophes, si des croix, des poteaux, des inscriptions, &;c., 
 saffisent pour acqucrir ou pour conserver la propriete exclusive 
 d'un pays qu'on ne cultive pas." 
 
 Kluber, to the same effect, writes thus : (§ 126) — " Pour 
 acquerir line chose par le moyen de I'occupation, il ne sufBt 
 point d'en avoir seulement I'intention, ou de s'attribuer une 
 possession purement mentale ; la declaration meme de vouloir 
 occuper, faite anterieurement a I'occupation effectuee par un 
 autre, ne suffirait pas. II faut qu'on ait reellement occupe le 
 premiei, et c'est par cela seul qu'en acquerant un droit ex- 
 clusif sur la chose, on impose a tout tiers I'obligation de s'en 
 abstenir. L'occupation d'une partie inhabitee et sans maltre 
 du globe de la terre, ne pent done s'etendre plus loin qu'on 
 ne pent tenir pour constant qu'il y ait eu effectivement pW^e 
 de possession, dans I intention de s''attrihuer la propriete* 
 Comme preuves d'une pareille prise de possession, ainsi que 
 
 6* 
 
118 THEORY OF JURISTS. 
 
 de la continuation de la possession en propriete, peuvent 
 servir tous les signes exterieurs qui marquent I'occupation et 
 la possession continue." 
 
 On this passage there is the following note : — " Le droit 
 de propriete d'etat peut, d'aprcs le droit des gens, continuer 
 d'exister, sans que I'etat continue la possession corporelle. 
 II suffit qu'il existe un signe qui dit, que la chose n'est ni res 
 nulUuSi ni delaissee. En pareil cas personne ne saurait 
 s'approprier la chose, sans ravir de fait, a celui qui I'a possedee 
 jusqu'alors en propriete, ce qu'il y a opere de son influence 
 d'une maniere legitime : enlever ceci ce serait blesser le droit 
 du proprietaire." 
 
 It would be difficult to determine theoretically what would 
 constitute a sufficient sign that the territory is not vacant, 
 or abandoned. Bynkershoek, who was opposed to the con- 
 tinuance of proprietary right from discovery, unless corporeal 
 possession was maintained, subsequently qualified his view. 
 *' Procter animum possessionem desidero, sed qualemcunque, 
 quae probet, me nee corpore desiisse possidere." (De Dominio 
 Maris, ch. i., De Origine Dominii.) 
 
 Mr. Wheaton, in his work on International Law, (vol. i.,ch. 
 iv., § 5, ) writes thus : — " The claim of European nations to 
 the possessions held by them in the New World discovered by 
 Columbus and other adventurers, and to the territories which 
 they have acquired on the continents and islands of Africa 
 and Asia, was originally derived from discovery or conquest 
 and colonisation, and has since been confirmed in the same 
 manner by positive compact." 
 
 The practice of nations seems fully to bear out the theory 
 of jurists, as it may be gathered from the language of 
 sovereigns and statesmen. Thus, in reference to the north- 
 west coast of America, on occasion of the earliest dispute be- 
 tween the crowns of Spain and England, Queen Elizabeth 
 refused to admit the exckisive pretensions of the Spaniards. 
 When Mcndoza,the Spanish ambassador, remonstrated against 
 the expedition of Drake, she replied, " that she did not under- 
 stand why either her subjects, or those of any other European 
 prince, should be debarred from traffic in the Indies : that, as 
 she did not acknowledge the Spaniards to have any title by 
 donation of the Bishop of Rome, so she knew no right they 
 had to any places other than those they were in actual pos- 
 session of ; for that their having touched only here and there 
 upon a coast, and given names to a few rivers or capes, were 
 
PRACTICE OF NATIONS. 119 
 
 such insignificant things as could in no ways entitle them to 
 a propriety further than in the parts where they actually 
 settled, and continued to inhabit." (Camden's Annals, anno 
 1580.) 
 
 Such was the language of the Crown of England in the 
 sixteenth century, and in no respect is the language of Great 
 Britain altered in the present day. Thus, in reference to the 
 negotiations between Great Britain and the United States, in 
 1824, Mr. Rush, in a letter to Mr. Adams, of August 12, 1824, 
 writes thus : — " As to the alleged prior discoveries of Spain 
 all along that coast, Britain did not admit them, but with 
 great qualification. She could never admit that the mere fact 
 of Spanish navigators having first seen the coast at particular 
 points, even where this was capable of being substantiated as 
 the fact, without any subsequent or efficient acts of sovereignty 
 or settlement following on the part of Spain, was sufficient to 
 exclude all other nations from that portion of the globe." 
 (State Papers, 1825-26, p. «12.) 
 
 But the Spanish crown itself, on the occasion of the 
 Nootka Sound controversy, felt that a claim to exclusive 
 territorial title could not be reasonably maintained on the plea 
 of mere discovery. Thus, in the Declaration of his Catholic 
 Majesty, on June 4, 1790, which was transmitted to all the 
 European Courts, and consequently bound the Crown of 
 Spain in the face of all nations, the following precise language 
 was employed : — 
 
 " Nevertheless, the King does deny what the enemies to 
 peace have industriously circulated, that Spain extends pre- 
 tensions and rights of sovereignty over the whole of the South 
 Sea, as far as China. When the words are made use of, ' In 
 the name of the King, his sovereignty, navigation, and ex- 
 clusive commerce to the continent and islands of the South 
 Sea,' it is the manner in which Spain, in speaking of the 
 Indies, has always used these words, — that is to say, to the 
 continent, islands, and seas which belong to his Majesty, so 
 far as discoveries have been made and secured to him hy treaties 
 and immemorial possession^ and uniformly acquiesced in, not- 
 withstanding some infringements by individuals, who have 
 been punished upon knowledge of their offences. And the 
 King sets up no pretensions to any possessions, the right to 
 which he cannot prove by irrefragable titles." 
 
 The pretensions of Spain to absolute sovereignty, com- 
 
120 BRITISH DOCTRINE. 
 
 merce, and navigation, had already been rejected by the 
 British Government, and they had insisted that English sub. 
 jeets, trading under the British flag, " have an indisputable 
 right to the enjoyment of a free and uninterrupted navigation, 
 commerce, and fishery ; and to the possession of such esta- 
 blishments as they should form, with the consent of the natives 
 of the country, not previously occupied by any of the European 
 nations. 
 
 Again, the Crown of Spain, in demanding assistance from 
 France, according to the engagements of the Family Com- 
 pact, rested her supposed title upon " treaties, demarcations, 
 takings of possession, and the most decided acts of sovereignty 
 exercised by the Spaniards from the reign of Charles If., and 
 authorised by that monarch in 1692." 
 
 It will thus be seen that Spain, in setting up a title by dis- 
 covery, supported her claims by alleging that the act was au- 
 thorised by the Crown, was attended with " takings of pos- 
 session," and was confirmed by treaties, e. g., that of Utrecht. 
 
 To a similar purport, in the discussions which took place 
 between Russia and the United States of America, in respect 
 to the north-west coast of America, which ultimately resulted 
 in the convention signed at St. Petersburgh, fj April, 1824, 
 the Chevalier de Poletica,the Russian minister at Washington, 
 in his letter of 28th February, 1822, to the American Secre- 
 tary of State, grounded the claims of Russia upon these threo 
 bases, as required by the general law of nations and imme- 
 morial usage among nations : — " The title of first discovery ; 
 the title of first occupation ; and, in the last place, that which 
 results from a peaceable and uncontested possession of more 
 than half a century." (British and Foreign State Papers, 
 1821-22, p. 485.) 
 
 To a similar purport the British Commissioners, Messrs. 
 Huskisson and Addington, in the sixth conference held at 
 London, December 16, 1826, maintained this doctrine : — 
 " Upon the question how far prior discovery constitutes a 
 legal claim to sovereignty, the law of nations is somewhat 
 vague and undefined. It is, however, admitted by the most 
 approved writers, that mere accidental discovery, unattended 
 by exploration — by formally taking possession in the namo 
 *of the discoverer's sovereign — by occupation and settlement, 
 more or less permanent — by purchase of the territory, or re- 
 ceiving the sovereignty from the natives — constitutes the 
 
CONDITIONS ATTACHED TO DISCOVERY. 121 
 
 lowest degree of title ; and that it is only in proportion as first 
 discovery is followed by any or all of these acts, that such 
 title is strengthened and confirmed." 
 
 In accordance with the same view, the plenipotentiary of 
 the United States, Mr. Gallatin, in his counter-statement, 
 which Mr. Greenhow has appended to the second edition of 
 his work, asserts that " Prior discovery gives a right to occu- 
 py, provided that occupancy take place within a reasonable 
 time, and is followed by permanent settlements and by the 
 cultivation of the soil." 
 
 It thus seems to be universally acknowledged, that dis- 
 covery, though it gives a right of occupancy, does not found 
 the same perfect and exclusive title which grows out of occu- 
 pation ; and that unless discovery be followed within a 
 reasonable time by some sort of settlement, it will be presumed 
 either to have been originally inoperative, or to have been 
 subsequently abandoned. 
 
 It seems likewise to be fully recognised by the law of 
 nations, as based upon principles of natural law, and as 
 gathered from the language of negotiations and conventions, 
 that in order that discovery should constitute an inchoate 
 title to territory, it must have been authorised by the 
 sovereign power, must have been accompanied by some act 
 of taking possession significative of the intention to occupy, 
 and must have been made known to other nations. 
 
 '» Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it 
 down, that " even in newly discovered countries, where a title 
 is meant to he established for the first time, some act of pos- 
 session is usually done and proclaimed as a notijicatiGn of the 
 fact. 
 
 There can be no second discovery of a country. In this 
 respect title by discovery differs from title by settlement. A 
 title by a later settlement may be set up against a title by an 
 earlier settlement, even where this has been formed by the 
 first occupant, if the earlier settlement can be shown to have 
 been abandoned. 
 
 M. Wolff explains the reason of this very clearly (§ cciii.:) — 
 On dit qu'une chose est abandonnee, si simplement son maitre 
 ne veut pas qu'elle soit plus long temps sienne, c'est a dire, 
 que I'acte de sa volonte ne coutienne rien de plus que ceci, 
 que la chose ne doit plus etre a lui. D'ou il paroit, que celui 
 qui abandonne une chose cesse d'en etre le maitre, et que par 
 consequent une chose abandonnee devient une chose qui n'est 
 
122 PROGRESSIVE DISCOVERY. 
 
 a personne ; mais qu'aussi long temps que le maitre n'a pas 
 rintention d'abandonner sa chose, il en reste le maitre." 
 
 The same writer observes elsewhere ( § mcxxxix.) — 
 " L'abandon requis pour I'usucaption, et pour la prescription 
 qui en est la suite, ne se presume pas aussi aisoment centre 
 les nations qu'entre les particuliers, a cause d'un long silence." 
 
 A title by second discovery cannot, from the nature of the 
 thing, be set up against a title by first discovery. The term 
 second discovery itself involves a contradiction, and where 
 the discovery has been progressive, " further discovery" would 
 seem to be the more correct phrase, A case can certainly be 
 imagined, where a later discovery may be entitled to greater 
 consideration than a prior discovery, namely, where the prior 
 discovery has been kept secret ; but in such a case the prior 
 discovery is not a discovery which the law of nations re- 
 cognises, for it has not been made known, at the time when 
 it took place, to other nations ; and the inconvenience which 
 would attend the setting up of claims of discovery long subse- 
 quently to the event upon which they are professed to be based, 
 would be so great, that the comity of nations does not admit 
 it. The comity of nations, indeed, in sanctioning title by dis- 
 covery at all, as distinct from title by occupation, has sought 
 to strengthen rather than to impugn the proprietary right of 
 nations ; but no territorial title would be safe from question, if 
 the dormant ashes of alleged discoveries might at any time be 
 raked up. 
 
123 
 
 CHAPTER IX. 
 
 TITLE BY SETTLEMENT. 
 
 Title by Settlement an imperfect Title. — Presumption of Law in its Fa- 
 vour. — Made perfect by undisturbed Possession. — Wheaton. — Title by 
 Usucaption or Prescription. — Vattel. — Acquiescence a Bar to conflict- 
 ing Title of Discovery. — Hudson's Bay Settlements. — Treaty of Utrecht. 
 — The Vicinitas of the Roman Law. — Mid-channel of Rivers. — Conti- 
 guity, as between conterminous States, a reciprocal Title. — Negotia- 
 tions between Spain and the United States of America. — Vattel. — Ter- 
 ritorial Limits extended by the Necessity of the Case — Right of Mari- 
 time Jurisdiction, how far accessorial to Right of Territory. — Right of 
 Pre-emption. — New Zealand. — North American Indians. — Right of 
 innocent Use. 
 
 Title by settlement, like title by discovery, is of itself an im- 
 perfect title, and its validity will be conditional upon the ter- 
 ritory being vacant at the time of the settlement, either as 
 never having been occupied, or as having been abandoned by 
 the previous occupant. In the former case, it resolves itself 
 into title by occupation ; in the latter, the consent of the pre- 
 vious occupant is either expressed by some convention, or pre- 
 sumed from the possession remaining undisputed. Title by 
 settlement, however, differs from title by discovery, or title by 
 occupation, in this respect, — that no second discovery, no se- 
 cond occupation can take place, but a series of settlements 
 may have been successively made and in their turn abandon- 
 ed, so that the last settlement, when confirmed by a certain 
 prescription, may found a good territorial title. Again, the 
 presumption of law will always be in favour of a title by set- 
 tlement. *' Commodum possidentis in eo est, quod etiamsi 
 ejus res non sit, qui possidet, si modo actor non potuerit suam 
 esse probare, remanct in suo loco possessio ; propter quam 
 causam, cum obscura sint utriusque jura contra petitorem judi- 
 cari solet." (Inst., 1. iv., tit. 15, § 4.) 
 
 Where title by settlement is superadded to title by disco- 
 very, the law of nations will acknowledge the settlers to have 
 a perfect title ; but where title by settlement is opposed to 
 title by discovery, although no convention can be cited in 
 
124 UNDISTURBED POSSESSION. 
 
 proof of the discovery having been waived, still, a tacit acqui- 
 escence on the part of the nation that asserts the discovery, 
 during a reasonable lapse of time since the settlement has 
 taken place, will bar its claim to disturb the settlement. Thus, 
 Mr. Wheaton (part ii., chap, iv., § 5) writes : — " The con- 
 stant and approved practice of nations shows, that by what- 
 ever name it be called, the uninterrupted possession of terri- 
 tory or other property, for a certain length of time, by one 
 state, excludes the claim of every other, in the same manner 
 as by the law of nations, and the municipal code of every 
 civilized nation, a similar possession by an individual excludes 
 the claim of every other person to the article of property in 
 question. This rule is founded upon the supposition, confirm- 
 ed by constant experience, that every person will naturally 
 seek to enjoy that which belongs to him ; and the inference 
 fairly to be drawn from his silence and neglect, of the original 
 defect of his title, or his intention to relinquish it." 
 
 Title, then, by settlement, though originally imperfect, may 
 be thus perfected by enjoyment during a reasonable lapse of 
 time, the presumption of law from undisturbed possession 
 being, that there is no prior owner, because there is no claim- 
 ant, — no better proprietary right, because there is no asserted 
 right. The silence of other parties presumes their acquies- 
 cence : and their acquiescence presumes a defect of title on 
 their part, or an abandonment of their title. A title once 
 abandoned, whether tacitly or expressly, cannot be resumed. 
 " Celui qui abandonne une chose cesse d'en etre le maitre, 
 et par consequent une chose abandonnee devient une chose 
 qui n'est a personne." (Wolff, cciii.) 
 
 Title by settlement, then, as distinguished from title by dis- 
 covery, when set up as a perfect title, must resolve itself into 
 title by usucaption or jvescription. Wollf defines usucaption 
 to be an acquisition of domain founded on a presumed deser- 
 tion. Vattel says it is the acquisition of domain founded on 
 long possession, uninterrupted and undisputed, that is to say, 
 an acquisition solely proved by this possession. Prescription, 
 on the other hand, according to the same author, is the excki- 
 sion of all pretensions to a right — an exclusion founded on the 
 length of time during which that right has been neglected ; 
 or, according to Wolff's definition, it is the loss of an inherent 
 right by virtue of a presumed consent. Vattel, writing in 
 P'rench, and observing that the word usucaption was but little 
 used in that language, made .use of the word iirescripiion when- 
 
TITLE BY PRESCRIPTIOiV. 125 
 
 ever there were no particular reasons for employing the other. 
 The same remark may be applied in reference to our own lan- 
 guage, and thus this title is generally spoken of as title by 
 prescription. 
 
 What lapse of time is requisite to found a valid title by 
 prescription has not been definitely settled. The law of na- 
 ture suggests no rule. Where, however, the claimant cannot 
 allege undoubted ignorance on his part, or on the part of 
 those from whom he derives his right, or cannot justify his 
 silence by lawful and substantial reasons, or has neglected his 
 right for a sufficient number of years as to allow the respec- 
 tive rights of the two parties to become doubtful, the presump- 
 tion of relinquishment will be estabhshed against him, and he 
 will be excluded by ordinary prescription. Lapse of time, in 
 the case equally of nations as of individuals, robs the parties 
 of the means of proof : so that if a bond fide possession were 
 allowed to be questioned by those who have acquiesced for a 
 long time in its enjoyment by the possessors, length of posses- 
 sion, instead of strengthening, would weaken territorial title. 
 This result would be so generally inconvenient, as to be inad» 
 missible. 
 
 Thus, in regard to the territories of the Hudson's Bay Com- 
 pany, it was alleged in the negotiations preliminary to the 
 Treaty of Utrecht, that the French had acquiesced in the vset- 
 tlement of the Bay of Hudson by the Company incorporated 
 by Charles H. in 1663 ; since M. Fontenac, the Governor of 
 Canada, in his correspondence with Mr. Baily, who was Go- 
 vernor of the Factories in 1637, never complained, " for seve- 
 ral years, of any pretended injury done to the French by the 
 said Company's settling a trade and building of forts at the 
 bottom of the bay." (General Collection of Treaties, &c. 
 London, 1710-33, vol. i., p. 446.) The King of England, it 
 is true, in his charter had set forth the title of the British 
 Crown, as founded on discovery : the title by discovery, how- 
 ever, required to be perfected by settlement ; and thus, in the 
 negotiations, the subsidiary title by settlement was likewise 
 set up by the British Commissioners, and the acquiescence of 
 the French was alleged, either as a bar to their setting up any 
 conflicting title by discovery, or as establishing the presump- 
 tion of their having abandoned their asserted right of dis- 
 covery. 
 
 What amount of contiguous territory attaches to a settle- 
 ment, so as to prevent the titles of two nations from conflict* 
 
126 MID-CHANNEL ISLANDS. 
 
 ing by virtue of adjoining settlements, seems to be governed 
 by no fixed rule, but must depend on the circumstances of 
 the case. Vattel observes (1. ii., § 95,) " If, at the same 
 time, two or more nations discover and take possession of an 
 island, or any other desert land ivitliout an owner^ they ought 
 to agree between themselves, and make an equitable partition ; 
 but, if they cannot agree, each will have the right of empire 
 and the domain in the parts in which they first settled." The 
 title of vic'uiitas was recognised in the Roman law, in the case 
 of recent alluvial deposits, as entitling the possessor of the ad- 
 joining bank to a claim of property ; but, if it were an island 
 formed in the mid-channel, there was a common title to it in 
 the proprietors of the two banks. " Insula nata in flumine, 
 quod frequenter accidit, si quidem mediam partem fluminis te- 
 net, communis est eorum, qui ab utraque parte fluminis prope 
 ripam praedia possident, pro modo latitudinis cujusque fundi, 
 quae latitudo prope ripam sit : quod si alteri parti proximior 
 est, eorum est tantum, qui ab ea parte prope ripam praedia 
 possident." (Inst, ii., tit. i., § 22.) So, in the case where a 
 river abandons its former channel, the ancient bed belongs to 
 those " qui prope ripam praedia possident ;" and in the Digest 
 (xli., tit. i., 1. 7,) we have a case supposed where a river has 
 changed its course, and occupied for a time the entire property 
 (totum agrum) of an individual, and then deserted its new 
 channel : the Roman law did not consider that, strictly speak- 
 ing, the title of the former proprietor revived, inasmuch as he 
 had no adjoining land. " Cujus tamen totum agrum novus 
 alveus oecupaverit, licet ad priorem alveum reversum fuerit 
 flu men ; non tamen is, cujus is ager fuerat, stricta ratione 
 quicquam. in eo alveo habere potest : quia et ille ager, qui 
 fuerat, desiit esse, amissa propria forma : et quia vicinum pras- 
 dium nullum habet, non potest ratione vicinitatis uUam partem 
 in eo alveo habere." 
 
 Again, in the case of a river, the banks of which are pos- 
 sessed by contiguous states, the presumption of law is, that 
 the Thalwegs or mid-channel, is the mutual boundary ; since 
 rivers are, in the case of conterminous states, communis juris, 
 unless acknowledged by them to be otherwise, or prescribed 
 for by one of the parties. "The general presumption," ob- 
 serves Lord Stowell, (in the Twee Gebroeders, 3 Rob., p. 339,) 
 " certainly bears strongly against such exclusive rights, and 
 ikQ title is matter to be established on the part of those claim- 
 
CONTIGUITY A RECIPROCAL TITLE. 127 
 
 ing under it, in the same manner as all other demands are to 
 be substantiated, by clear and competent evidence." 
 
 A title by contiguity, as between conterminous states, would 
 thus appear to be a reciprocal title : it cannot be advanced by 
 one party, excepting as a principle which sanctions a corres- 
 ponding right in the other. The practice is in accordance 
 with this. Thus, the United States of America, in its dis- 
 cussions with Spain respecting the western boundary of Louis- 
 iana, contended, that " whenever one European nation makes 
 a discovery, and takes possession of any portion of that con- 
 tinen-t (sc, of America,) and another afterwards does the same 
 at some distance from it, where the boundary between them is 
 not determined by the principle above mentioned, (sc, actual 
 possession of the sea-coast,) the middle distance becomes such 
 of course." (British and Foreign State Papers, 1817-18, 
 p. 328.) 
 
 Circumstances however will sometimes create exceptions, 
 as for instance, where the control of a district left unoccupied 
 is necessary for the security of a state, and not essential to 
 that of another: in this case the principle of vicinitas would 
 be overruled by higher considerations, as it would inter- 
 fere with the perfect enjoyment of existing rights of established 
 domain. 
 
 Thus Vattel, 1. i., § 288. " A nation may appropriate to 
 herself those things of which the free and common use would 
 be prejudicial or dangerous to her. This is a second reason 
 for which governments extend their dominion over the sea along 
 their coasts, as far as they are able to protect their rights. It 
 is of considerable importance to the safety and welfare of the 
 state that a general liberty be not allowed to all comers to ap- 
 proach so near their possessions, especially with ships of war, 
 as to hinder the approach of trading nations, and molest their 
 navigation." And again, after stating that it was not easy to 
 determine strictly the limits of this right, he goes on to say : 
 "Each state may, on this head, make what regulation it pleases 
 so far as respects the transactions of the citizens with each 
 other, or their concerns with their sovereign, but, between na- 
 tion and nation, all that can reasonably be said is, that in ge- 
 neral, the dominion of the state over the neighboring sea ex- 
 tends as far as her safety renders it necessary and her power is 
 able to assert it ; since on the one hand she cannot appropri- 
 ate to herself a thing that is common to all mankind, such as 
 i\iQ sea, except so far as she has need of it for some lawful end, 
 
128 EIGHT OP PRE-EMPTION. 
 
 and on the other, it would be a vain and ridiculous pretension 
 to claim a right which she were wholly unable to assert." At 
 present, by the general law of nations, the possession of the 
 coast is held to entitle a nation to exclusive jurisdiction over 
 the adjoining seas to the extent of a marine league, as being 
 necessary for the free execution of her own municipal laws, 
 and as being within the limits which she can command by her 
 cannon. On the ground then of her own right of self-preser- 
 vation, a nation which has made a settlement may possess a 
 perfect right of excluding other nations from settling within a 
 given distance. This right, however, is evidently an accessory 
 of the right of settlement. 
 
 A further accessorial right of settlement has, in modern 
 times, been recognised by the practice of civilised nations in 
 both hemispheres, namely, a right of pre-emption from the 
 aboriginal inhabitants in favor of the nation which has actu- 
 ally settled in the country. It is this right which Great Bri- 
 tain asserts against all other civilised nations in respect to 
 New Zealand, and which the United States of America assert 
 against all other civilised nations in respect to the native In- 
 dians. The claim involved in it is evidently based upon the 
 principle, that the acquisition of such territory by any other 
 nation would be prejudicial to the full enjoyment of the exist- 
 ing territorial rights of the nation which has made settlement 
 there. Such seems to be the only recognised ground upon 
 which a perfect right of contiguity can be set up. The prin- 
 ciple of mere vicinity in the case of nations, unless strictly 
 limited, will only result in furnishing a graceful pretext for the 
 encroachments of the strong upon the weak, whenever a 
 powerful state should cast a longing eye upon an adjoining 
 district, and feel a natural inclination to render its own pos- 
 sessions more complete : 
 
 Oh si angulus ille 
 Proximus acccdal, qui nunc deformat agellam. 
 
 The right of innocent use seems to have been admitted into 
 the code of international law in order to obviate the strength 
 of this temptation, but it is only an imperfect right, unlike that 
 of necessity, and all attempts to construct a title upon princi- 
 ples of convenience can result only in imperfect titles, which 
 require the express acknowledgment of other nations to give 
 them validity, 
 
129 
 
 CHAPTER X. 
 
 ON DERIVATIVE TITLE. 
 
 Title by Conquest. — Title by Convention. — Vattel — Martens. — Whea- 
 ton. — The Practice of Nations. — United States. — Great Britain. — 
 Kent's Commentaries. — Mixed Conventions. — The Fisheries of New. 
 foundland. — Treaty of Paris. — Distinction between Rights and Liber- 
 ties. — Permanent Servitude. — Negotiations ia 1818.- Mr. Adams' Ar- 
 gument. — Lord Bathurst's Letter. — Mr. Adams' Reply. — Convention 
 of 1818. 
 
 Derivative title may result from involuntary or voluntary 
 cession {traditio.) Involuntary cession takes place when a 
 nation vanquished in war abandons its territory to the con- 
 queror who has seized it. Voluntary cession, on the other 
 hand, is marked by some compact or convention ; its object 
 may be either to prevent a war, or to cement a peace. The 
 repeated occurrence of such voluntary cessions in later times, 
 has led the chief writers on international law to make a dis- 
 tinction accordingly between transitory conventions, which 
 mark such cessions, and treaties properly so called. 
 Vattel, b. xi., ch. xii., § 153, lays it down that, — 
 " The compacts which have temporary matters for their 
 object are called agreements, conventions, and pactions. 
 They are accomplished by one single act, and not by repeated 
 acts. These compacts are perfected in their execution once 
 for all ; treaties receive a successive execution, whose dura- 
 tion equals that of the treaty." 
 
 Martens, § 68, to the same effect observes, — 
 " Les traites de cession, de limites, d'echange, et ceux 
 meme qui constituent une servitude de droit public, ont la na- 
 ture des conventions transitoires ; les traites d'amitie, de 
 commerce, de navigation, les alliances egales et inegales, ont 
 celle des traites proprement dits {fmdera.) 
 
 •' Les conventions transitoires sont perpetuelles par la na- 
 ture de la chose." (§ 1.) 
 
 Mr. Wheaton, part iii., c. 11, follows in the same line : — 
 *' General compacts between nations may be divided into 
 what are called transitory conventions, and treaties properly 
 
130 DOCTRINE OF THE UNITED STATES. 
 
 SO called. The first are perpetual in their nature, so that 
 being carried into effect, they subsist independent of any 
 change in the sovereignty and form of government of the 
 contracting parties ; and although their operation may in 
 some cases be suspended during war, they revive on the return 
 of peace without any express stipulation. Such arc treaties 
 of cession, boundary, or exchange of territory, or those which 
 create a permanent servitude in favor of one nation within 
 the territory of another." 
 
 If we look to the practice of nations, we find that the tri- 
 bunals of the United States, equally with those of Great Bri- 
 tain, maintain this doctrine. Thus in the case of The Society 
 for the Propagation of the Gospel in Foreign Parts v. Town 
 of Newhaven, in Wheaton's Reports of Cases adjudged in 
 the Supreme Court of the United States, Feb. 1823, vol. viii., 
 p. 494, Mr. Justice Washington, in delivering judgment for 
 the plaintiffs, said, " But we are not inclined to admit the 
 doctrine urged at the bar, that treaties become extinguished, 
 ipso facto, by war between the two governments, unless they 
 should be revived by an express or implied renewal on the 
 return of peace. Whatever may be the latitude of doctrine 
 laid down by elementary writers on the law of nations, dealing 
 in general terms in relation to this subject, we are satisfied 
 that the doctrine contended for is not universally true. There 
 may be treaties of such a nature, as to their object and im- 
 port, as that war will put an end to them ; but where treaties 
 contemplate a permanent arrangement of territorial and other 
 national rights, or which, in their terms, are meant to provide 
 for the event of an intervening war, it would be against every 
 principle of just interpretation to hold them extinguished by 
 the event of the war. If such were the law, even the treaty 
 of 1783, so far as it fixed our limits, and acknowledged our 
 independence, would be gone, and we should have had again 
 to struggle for both upon original revolutionary principles. 
 Such a construction was never asserted, and would be so 
 monstrous as to supersede all reasoning. 
 
 '* We think, therefore, that treaties stipulating for perma- 
 nent rights and general arrangements, and professing to aim 
 at perpetuity, and to deal with the case of war as well as of 
 peace, do not cease on the occurrence of war, but are at most 
 only suspended while it lasts ; and unless they are waived by 
 the parties, or new and repugnant stipulations are made, they 
 revive in their operation at the return of peace ?" 
 
PERMANEKT PROVISIONS. 131 
 
 In the case of Sutton v. Sutton, 1 Russell and Mylne, p. 
 663, which was decided by Sir J. Leach, in the Rolls Court 
 in London, in 1830, a question was raised whether by the 
 ninth article of the treaty of 1794, between Great Britain 
 and the United States, American citizens who held lands in 
 Great Britain on Oct. 20, 1795, and their heirs and assigns, 
 are at all times to be considered, as far as regards those lands, 
 not as aliens, but as native subjects of Great Britain. The 
 28th article of the treaty declared that the ten first articles 
 should be permanent, but the counsel in support of the objec- 
 tion to the title contended, that " it was impossible to suggest 
 that the treaty was continuing in force in 1813 ; it necessa- 
 rily ceased with the commencement of the war. The 87 G. 
 3, c. 97, could not continue in operation a moment longer 
 without violating the plainest words of the Act. That the 
 word ' permanent' was used, not as synonymous with ' per- 
 petual or everlasting,' but in opposition to a period of time 
 expressly Hmited." On the other hand, the counsel in sup- 
 port of the title maintained that " the treaty contained articles 
 of two different descriptions ; some of them being temporary, 
 others of perpetual obligation. Of those which were tempo- 
 rary, some were to last for a limited period ; such as the 
 various regulations concerning trade and navigation ; and 
 some were to continue so long as peace subsisted, but being 
 inconsistent with a state of war, would necessarily expire 
 with the commencement of hostilities. There were other 
 stipulations which were to remain in force in all time to come, 
 unaffected by the contingency of peace or war. For instance, 
 there are clauses for fixing the boundaries of the United 
 States. Were the boundaries so fixed to cease to be the 
 boundaries, the moment that hostilities broke out ?" 
 
 The Master of the Rolls, in his judgment, said, " The pri- 
 vileges of natives being reciprocally given, not only to the 
 xtual possessors of lands, but to their heirs and assigns, it is 
 a reasonable construction that it was the intention of the 
 *reaty, that the operation of the treaty should he permanent^ 
 bid not depend upon the continuance of a state of peace." 
 
 " The Act of the 37 G. 3, c. 95, gives full effect to this 
 article of the treaty in the strongest and clearest terms; and 
 if it be, as I consider it, the true construction of this article, 
 that it was to be permanent, and independent of a state of 
 peace or war, then the Act of Parliament must be held in the 
 24th section, to declare this permanency, and when a subse- 
 
132 OF CERTAIN TREATIES. 
 
 quent section provides that the act is to continue in force, so 
 long only as a state of peace shall subsist, it cannot be con- 
 strued to be directly repugnant and opposed to the 24th sec- 
 tion, but is to be understood as referrin<j to such provisions of 
 Uie Act only as would in their nature depend upon a state c 
 peace.** 
 
 The third article, however, of the Treaty of 1794, which 
 may be referred to in Martens' Recueil, ii., p. 497, was of a 
 mixed character, as it recognised a right of one kind, and 
 conceded a liberty of another kind. 
 
 " It is agreed, that the people of the United States shall 
 continue to enjoy, unmolested, the right to take fish of every 
 kind on the Grand Bank, and on other banks of Newfound- 
 land ; also, in the Gulf of St. Lawrence and all other places 
 in the sea where the inhabitants of both countries used, at any 
 time heretofore, to fish. And also, that the inhabitants of 
 the United States shall have liberty to take fish of every kind 
 on such part of the coast of Newfoundland as British fisher- 
 men shall use, (but not to dry or cure the same on that island) 
 and also on the coasts, bays, and creeks of all other of her 
 Britannic Majesty's dominions in America; and that the 
 American fishermen shall have liberty to dry and cure fish in 
 any of the unsettled bays, harbors, and creeks of Nova Scotia, 
 Magdalen Islands, and Labrador, so long as the same shall re- 
 main unsettled ; but so soon as the same, or either of them, 
 shall be settled, it shall not be lawful for the said fishermen 
 to dry or cure fish at such settlements without a previous agree- 
 ment for that purpose with the inhabitants, proprietors, or pos- 
 sessors of the ground." 
 
 That the grant of this liberty to American fishermen to take 
 fish on portions of the coast of his Britannic Majesty's do- 
 minions, and to dry and cure their fish unconditionally on 
 certain districts not yet settled, subject however to conditions 
 when such districts should become settled, was a provision of 
 a distinct character from the recognition of their right to fish 
 in certain seas and gulfs hitherto open to both parties — was to 
 be presumed both from the terms of the provisions being dis- 
 tinct from each other, and from the nature of the things them- 
 selves, as the liberties were to be enjoyed within his Britannic 
 Majesty's dominions, the right was to be exercised in the seas 
 and gulfs, over which his Britannic Majesty claimed no ex- 
 clusive sovereignty. 
 
 The principle established by these two cases seems to be 
 
MIXED C0NVE^T10^'S. 133 
 
 this,— that where a convention in its terms contemplates a 
 permanent arrangement of territorial or other national right, 
 the continuance of which would not be inconsistent with a 
 state of war, it will not expire with the commencement of 
 hostilities, though its operation may in certain cases be sus- 
 pended till the return of peace. 
 
 Hence indeed, conventions, by which a right is recognised, 
 are no sooner executed than they are completed and perfected. 
 If they are valid, they have in their own nature a perpetual 
 and irrevocable effect. To use the words of Vattel, "As 
 soon as a right is transferred by lawful convention, it no longer 
 belongs to the state that has ceded it : the affair is concluded 
 
 o 
 
 and terminated." 
 
 To the same effect Judge Kent, the Blackstone of the 
 United States, in his Commentaries upon American law, (vol. 
 i., p. 177,) adopts almost word for word the judgment of the 
 Supreme Court : — " Where treaties contemplate a permanent 
 arrangement of national rights, or which by their terms are 
 meant to provide for the event of an intervening war, it would 
 be against every principle of just interpretation to hold them 
 extinguished by the event of war. They revive at peace, 
 unless waived, or new and repugnant stipulations be made." 
 
 Discussions, however, and disputes have not unfrequently 
 arisen as to the character of certain conventions, from the 
 circumstance that on occasions where rights have been recog- 
 nised, liberties or favors have been conceded in other articles 
 of the same agreement. 
 
 To this effect Martens (§ 58) observes, " Cette distinction 
 entre les conventions transitoires et les traites serait encore 
 plus importante, si nombre des traites, et nommement les 
 traites de paix, n'etaient pas composes d'articles de Tun et de 
 I'autre genre, [mixtcs,] ce qui met dela difficulte dans I'appli- 
 cation des principes enonces." 
 
 A striking illustration of this observation of M. Martens 
 may be found in the discussions which took place between the 
 governments of the United States and Great Britain in respect 
 to the fisheries on the Banks of Newfoundland, after the 
 Treaty of Ghent. 
 
 By the first article of the treaty signed at Paris in 1783, 
 between Great Britain and the United States of America, his 
 Britannic Majesty had acknowledged the said United States 
 [fourteen in number as specified] to be free, sovereign, and 
 independent states. 
 
 7 
 
134 KECOGNITIONS OF INDEPE^I/EI^Ci:, 
 
 This article then contained the recognition of a right once 
 and for all ; and as the main and principal ohject of the 
 treaty was the recognition of the independence of the United 
 States, this treaty may justly be classed amongst transitory 
 conventions, which are completed and perfected as soon as 
 executed. 
 
 Another question, however, might oln'iously be raised \n 
 case of a war, — whether the words of the article created 
 what Martens designates " une servitude de droit public," and 
 what Mr. Wheaton speaks of as " a pern7anent servitude in 
 favor of one nation within theten-itory of another," which from 
 the nature of the thing would be suspended during the war, 
 but would revive on the restoration of peace, or whether they 
 merely conceded a favor, the duration of which would be sub- 
 ject to the continuance of peaceful relations between the two 
 states, so that the obligation would cease with the breaking 
 out of war. 
 
 In the negotiations which took place in 1818 between the 
 two governments [British and Foreign State Papers, 1819-20,] 
 Mr. Adams, on the part of the United States, contended that 
 the treaty of 1783 was not one of those, *' which, by the 
 common understanding and usage of civilized nations, is or 
 can be considered as annulled by a subsequent war between 
 the same parties. To suppose that it is, would imply the in- 
 consistency and absurdity of a sovereign and independent 
 state liable to forfeit its right of sovereignty, by the act of 
 exercising it in a declaration of war. But the very words of 
 the treaty attest, that the sovereignty and independence of 
 the United States were not considered or understood as grants 
 from his Majesty. They were taken and expressed as ex- 
 isting before the treaty was made, and as then only first for- 
 mally recognized and acknowledged by Great Britain. 
 
 " Precisely of the same nature were the rights and liberties 
 in the fisheries to which I now refer. They were in no re- 
 spect grants from the King of Great Britain to the United 
 States ; but the acknowledgment of them, as rights and liber- 
 ties enjoyed before the separation of the two countries, which 
 it was mutually agreed should continue to be enjoyed under 
 the new relations which were to subsist between them, con- 
 stituted the essence of the article concerning the fisheries. 
 The very peculiarity of the stipulation is an evidence that it 
 was not, on either side, understood or intended as a grant 
 from one sovereign state to another. Had it been so under- 
 
TREATIES TERMINABLE BY WAR. 135 
 
 stood, neither could the United States have claimed, nor would 
 Great Britain have granted gratuitously, any such concession. 
 There was nothing either in the state of things or in the dis- 
 position of the parties which could have led to such a stipu- 
 lation, as on the ground of a grant, without an equivalent by 
 Great Britain." 
 
 Lord Bathurst's letter of October 30, 1815, to Mr. Adams, 
 contains a full exposition of the doctrine maintained by Great 
 Britain. It is worthy of perusal in full, but, as its great 
 length precludes its insertion on the present occasion, the pas- 
 sages have been selected which bear most closely on the 
 question. 
 
 "The Minister of the United States appears, by his letter, 
 to be well aware that Great Britain has always considered the 
 liberty formerly enjoyed by the United States, of fishing 
 within British limits, and using British territories, as derived 
 from the third article of the Treaty of 17S3, and from that 
 alone ; and that the claim of an independent state to occupy 
 and use, at its discretion, any portion of the territory of an- 
 other, without compensation or corresponding indulgence, 
 cannot rest on any other foundation than conventional stipu- 
 lation. It is unnecessary to enquire into the motives which 
 might have originally influenced Great Britain in conceding 
 such liberties to the United States ; or whether other articles 
 of the treaty wherein these liberties are specified, did, or did 
 not, in fact afford an equivalent for them ; because all stipu- 
 lations profess to be founded on equivalent advantages and 
 mutual convenience. If the United States derived from that 
 treaty privileges from which other independent nations, not 
 admitted by treaty, were excluded, the duration of the privi- 
 leges must depend on the duration of the instrument by which 
 they were granted ; and, if the war abrogated the treaty, it 
 determined the privileges. It has been urged, indeed, on the 
 part of the United States, that the treaty of 1783 was of a 
 peculiar character ; and that, because it contained a recogni- 
 tion of American independence, it could not be abrogated by 
 a subsequent war between the parties. To a position of this 
 novel nature, Great Britain cannot accede. She knows of 
 no exception to the rule, that all treaties are put an end to by 
 a subsequent war between the same parties ; she cannot, 
 therefore, consent to give to her diplomatic relations with one 
 state, a different degree of permanency from that on which 
 her connection with all other states depends. Nor can she 
 
136 IRREVOCABLE RECOGNITIONS. 
 
 consider any one state at liberty to assign to a treaty made 
 witii her, such a pecuUarity of character as shall make it, as 
 to duration, an exception to all other treaties, in order to found, 
 on a peculiarity thus assumed, an irrevocable title to indul- 
 gences, which have all the features of temporary concessions.*' 
 
 "/^ is by no means unusual for treaties containing recogni- 
 tions and achiowledgments of title, in the nature of perpetual 
 obligation, to contain, likewise, grants of privileges liable to re- 
 vocation. The Treaty of 1783, like many others, contained 
 provisions of different characters, some in their own nature ir- 
 revocable, and others of a temporary nature. If it be thence 
 inferred, that, because some advantages specified in a treaty 
 could not be put an end to by the war, therefore all the other 
 advantages were intended to be equally permanent, it must 
 first be shown that the advantages themselves are of the same, 
 or, at least, of a similar character : for the character of one 
 advantage recognised or conceded by treaty, can have no 
 connection with the character of another, though conceded 
 by the same instrument, unless it arises out of a strict and 
 necessary connection between the advantages themselves. 
 But what necessary connection can there be between a 
 right to indcpsndence, and a liberty to fish within British 
 jurisdiction, or to use British territory? Liberties within 
 British limits are as capable of being exercised by a dependent, 
 as an independent state, and cannot therefore be the necessary 
 consequences of independence. 
 
 "The independence of a state is that which cannot be cor- 
 rectly said to be granted by a treaty but to be acknowledged 
 by one. In the Treaty of 1783, the independence of the 
 United States was certainly acknowledged ; but it had been 
 before acknowledged, not merely by the consent to make the 
 treaty, but by the previous consent to enter into the provision- 
 al articles executed November, 1782. The independence 
 might have been acknowledged, without either the treaty or 
 the provisional articles ; but by whatever mode acknowledged 
 the acknowledgment is, in its own nature, irrevocable. A 
 power of revoking, or even modifying it, would be destruc- 
 tive of the thing itself; and, therefore, all such power is ne- 
 cessarily renounced, when the acknowledgment is made. 
 The war could not put an end to it, for the reason justly as- 
 signed by the American Minister, because a nation cannot 
 
LIBERTY DIFFERENT FROM RIGHT. 137 
 
 forfeit its sovereignty by the act of exercising it ; and for the 
 further reason that Great Britain, when she declared war on 
 her part against the United States, gave them by that very 
 act a new recognition of their independence. 
 
 " The nature of the hberty to fish within British Hmits, or 
 to use British territory, is essentially different from the right 
 to independence, in all that may reasonably be supposed to re- 
 gard its intended duration. The grant of this liberty has all 
 the aspect of a policy temporary and experimental, depend- 
 ing upon the use that might be made of it, on the condition 
 of the islands and places where it was to be exercised, and 
 the more general conveniences or inconveniences, in a mili- 
 tary, naval, or commercial point of view, resulting from the 
 access of an independent nation to such islands and places. 
 When, therefore, Great Britain, admitting the independence 
 of the United States, denies their rights to the liberties for 
 which they now contend, it is not that she selects from the 
 treaty articles or parts of articles, and says, at her own will, 
 This stipulation is liable to forfeiture by war, and that is ir- 
 revocable ; but the principle of her reasoning is, that such 
 distinctions arise out of the provisions themselves, and are 
 founded on the very nature of the grants. But the rights ac- 
 knowledged by the treaty of 1783 are not only distinguish- 
 able from the liberties conceded by the same treaty in the 
 foundation upon which they stand, but they are carefully 
 distinguished in the treaty of 1783 itself. 
 
 " The undersigned begs to call the attention of the American 
 minister to the wording of the 1st and 2nd articles, to which 
 he has often referred for the foundation of his arguments. 
 In the 1st article, Great Britain acknowledges an independ- 
 ence already expressly recognised by other powers of Europe, 
 and by herself, in her consent to enter into provisional ar- 
 ticles, of Nov. 1782. In the 3rd article Great Britain ac- 
 knowledges the right of the United States to take fish on the 
 banks of Newfoundland, and other places, from which Great 
 Britain had no right to exclude any independent nation. 
 But they are to have the liberty to take fish on the coasts of 
 his Majesty's dominions in America, and liberty to cure and 
 dry them in certain unsettled places within his Majesty's 
 territory. If these liberties, thus granted, were to be as per- 
 petual and indefeasible as the rights previously recognized, it 
 is difficult to conceive that the plenipotentiaries of the United 
 States would have admitted a variation of language so adapt- 
 
138 LIBERTIES DISTINCT FROM RIGHTS. 
 
 ed to produce a different impression, and above all, that they 
 should have admitted so strange a restriction of a perpetual 
 and indefeasible right, as that with which the article concludes, 
 which leaves a right, so practical and so beneficial as this 
 is admitted to be, dependent on the will of British subjects, in 
 their character of inhabitants, proprietors, or possessors of the 
 soil, to prohibit its exercise altogether. 
 
 "It is clearly obvious that the word right is, throughout the 
 treaty, used as applicable to what the United States were to 
 enjoy in virtue of a recognized independence, and the word 
 liberty to what they were to enjoy, as concessions strictly de- 
 pendent on the treaty itself." 
 
 Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 
 1816, having explicitly "disavowed every pretence of claiming 
 for the diplomatic relations between the United States and 
 Great Britain a degree of permanency different from that of 
 the same relations between either of the parties and all other 
 powers," goes on to state, *' The undersigned believes that 
 there are many exceptions to the rule by which treaties be- 
 tween nations are mutually considered as terminated by the 
 intervention of war ; that these exceptions extend to the en- 
 gagements contracted, with the understanding that they are 
 to operate equally in war and peace, or exclusively during 
 war : to all engagements by which the parties superadd the 
 sanction of a formal compact to principles dictated by the 
 eternal laws of morality and humanity ; and finally to all 
 engagements which, according to the expression of Lord 
 Bathurst's note, are in the nature of a perpetual obligation. 
 To the first and second of these classes may be referred the 
 10th article of the treaty of 1794, and all treaties or articles 
 of treaties stipulating the abolition of the slave-trade. The 
 treaty of peace of 1783 belongs to the third." 
 
 " The reasoning of Lord Bathurst's note seems to confine 
 this perpetuity of obligation to recognitions and acknowledg- 
 ments of title ; and to consider its perpetual nature as result- 
 ing from the subject matter of the contract, and not from the 
 engagement of the contractor. Whilst Great Britain leaves 
 the United States unmolested in the enjoyment of all the ad- 
 vantages, rights, and liberties, stipulated in their behalf in the 
 Treaty of 1783, it is immaterial to them whether she founds 
 her conduct upon the mere fact that the United States are in 
 possession of such rights, or whether she is governed by good 
 faith and respect for her own engagements. But if she con- 
 
TREATY — STIPTJLATIONS. 139 
 
 tests any one of them, it is to her engagements only that the 
 United States can appeal as to the rule for settling the ques- 
 tion of fight. If this appeal be rejected, it ceases to be a dis- 
 cussion of right, and this observation applies as strongly to the 
 recognition of independence, and to the boundary line, in the 
 Treaty of 1783, as to the fisheries. It is truly observed by 
 Lord Bathurst, that in that treaty the independence of the 
 United States was not granted, but acknowledged. He adds, 
 that it might have been acknovidedged without any treaty, 
 and that the acknowledgment, in whatever mode made, 
 would have been irrevocable. But the independence of the 
 United States was precisely the question upon which a 
 previous war between them and Great Britain had been 
 waged. Other nations might acknowledge their independ- 
 ence without a treaty, because thej^ had no right, or claim of 
 right, to contest it : but this acknowledgment, to be binding 
 upon Great Britain, could have been made only by treaty, 
 because it included the dissolution of one social compact be- 
 tween the parties, as well as the formation of another. Peace 
 could exist between the two nations only by the mutual 
 pledge of faith to the new social relations established between 
 them, and hence it was that the stipulations of that treaty 
 were in the nature of perpetual obligation, and not liable to be 
 forfeited by a subsequent war, or by any declaration of the 
 will of either party without the assent of the other." 
 
 Mr. Adams then proceeds to discuss the variation in the 
 employment of the terms right and liberty, considering the 
 former to import an advantage to be enjoj'ed in a place of 
 common jurisdiction, the latter to refer to the same advantage, 
 incidentally leading to the borders of a special jurisdiction. 
 That the term right was used as applicable to what the 
 United States were to enjoy in virtue of a recognised in- 
 dependence^ and the word liberty to what they were to enjoy 
 as concessions strieth' dependent on the treaty itself, he de- 
 clined to admit, as a construction altogether unfounded. 
 
 He further contended, that " the restriction at the close of 
 the article was itseif a confirmation of the permanency of every 
 part of the article,'' for that, " upon the common and equitable 
 rule of constriiction for treaties, the expression of one restric- 
 tion implies the exclusion of all others not expressed ; and thus 
 the very limitation, which looks forward to the time when 
 the unsettled deserts should become inhabited, to modify 
 the finjoyment of the same liberty, conformably to the 
 
140 CONVENTION OF 1818. 
 
 change of circumstances, corroborates the conclusion that 
 the whole purport of the compact was pennanent and 
 not temporary." 
 
 The documents from which these extracts have been made 
 will well repay a perusal of them in full, both from the im- 
 portance of the principles which are therein discussed, and 
 from the ability with which the discussion was conducted on 
 both sides. The result of the negotiations was the con- 
 clusion of the convention of October 20, 1818, by which the 
 liberty to take and cure fish on certain parts of the British 
 American coasts, so long as they remained unsettled was 
 secured to the citizens of the United States, in common with 
 British subjects ^''for ere?*." 
 
 It appears to have been admitted by both parties to this 
 negotiation, that treaties do sometimes contain acknowledg- 
 ments in the nature of a perpetual obligation : the point at 
 issue between them seems to have been, whether the provi- 
 sions of a convention could ever be considered as of a mixed 
 character, some of which would be terminable by war, whilst 
 others were irrevocable ; and whether the nature of the thing 
 acknowledged determined the character of the provision, or 
 the engagement of a treaty gave permanence to the obliga- 
 tion. It seems to have been implied by the insertion of the 
 words " for ever,"' in the first article of the Convention of 
 1818, that if the permanent character of the thing recog- 
 nised is not beyond dispute, the words of the convention must 
 be express, in order to give to the engagements of it the na- 
 ture of a perpetual obligation. On the other hand, both par- 
 ties admitted that recognitions of territorial title were of 
 perpetual obligation; they differed as to the grounds: the 
 British commissioner deriving the obligation from the nature 
 of the thing recognised, the plenipotentiary of the United 
 States from the fact of its having been recognised by a 
 convention. 
 
141 
 
 CHAPTER XL 
 
 NEGOTIATION BETWEEN THE UNITED STATES AND GREAT 
 BRITAIN IN 1818. 
 
 Treaty of Ghent, 1814. — Negotiations respecting the Restoration of Fort 
 George. — The United States replaced in Possession of the Post at the 
 Mouth of the Cohimbia River. — General Negotiations in London, in 
 1818, — Proposal on the I'art of the United States.— Convention of 
 1818. — No exclusive Claim on either Side. — Western Boundary of the 
 United States by the Treaty of 1783.~Treaty of 1794— Sources of 
 the Mississippi in 47° 38'. — Convention of 1803, respecting the Boun- 
 dary, not ratified. — President Jefferson's Letter. — Cession of Louisiana 
 to the United States. — Convention of 1806. — First Allusion to the 
 Country west of the Rocky Mountains. — Convention not ratified by 
 the United States. — Boundary Line according to the Treaty of Utrecht. 
 — Opinion of Mr. Greenhow. — Anderson's History of Commerce. — 
 Treaty of Ryswick — Limits of Canada, as surrendered to Great Bri- 
 tain. — Difficulty of Boundary Treaties from incorrect Maps. — Treaty 
 of 1783. 
 
 The Treaty of Ghent, between Great Britain and the United 
 States of America, was signed on the 24th of December 
 1814, and it was agreed in the first article, "that all territory, 
 places, and possessions whatsoever taken by either party from 
 the other during the war, or which may be taken after the 
 signing of this treaty, excepting only the islands hereinafter 
 mentioned [in the bay of Passamaquoddy,] shall be restored 
 without delay." By virtue of this article, Mr. Monroe, the 
 Secretary of State at Washington, wrote to Mr. Baker, the 
 British charge d'affaires, on July 18, 1815, to inform him 
 that measures would be taken by the United States to occupy 
 withoutdelay the post on the Columbia river, which a British 
 expedition had succeeded in taking possession of during the 
 war, as not being within the exception stipulated. [British 
 and Foreign State Papers, 1821-22, p. 459.] To this com- 
 munication an indecisive reply was made by Mr. Baker, and 
 the affair was allowed to rest till 1817, when it appears that 
 the United States despatched the Ontario sloop of war to re- 
 sume possession of this post, without giving previous notice 
 
 7* 
 
142 RESTORATION OF FORT GEORGE. 
 
 to Mr. Bagot, the British minister at "Washington. This led 
 to an inquiry on the part of Mr. Bagot, relative to the des- 
 tination of the Ontario, and the object of her voyage, and to 
 a statement from him, that " the post in question had not been 
 captured during the late war, but that the Americans had re- 
 tired from it under an agreement made with the North-west 
 Company, who had purchased their effects, and who had ever 
 since retained peaceable possession of the coast." He fur- 
 ther observed, that no claim for the restitution of this post 
 could be grounded upon the first article of the Treaty of 
 Ghent, and that " the territory itself was early taken posses- 
 sion of in his Majesty's name, and has been since considered 
 as forming a part of his Majesty's dominions." 
 
 The discussion was soon afterwards transferred to London, 
 when, in February 1818, Lord Castlereagh intimated his re- 
 gret that no notice of the expedition of the Ontario should 
 have been given to the British minister at Washington, Great 
 Britain having a claim of dominion over the territory in 
 question. It was the desire, however, he said, of the British 
 Government, that the claim of title to this post should go 
 before commissioners for arbitration. Mr. Rush, the Min- 
 ister of the United States, was authorised to state that the 
 omission to give notice of the Ontario's departure to Mr. 
 Bagot, was entirely owing to the accident of the President 
 being absent from the seat of government, but that it had 
 been concluded from Mr. Baker's communications that no 
 authorised English establishment existed at the place, and " as 
 they intimated no question whatever of the title of the Unit- 
 ed States to the settlement, which existed there before the 
 late war, it did not occur that any such question had since 
 arisen, which could make it an object of interest to Great 
 Britain." 
 
 Mr. Adams, in the course of his subsequent instructions to 
 Mr. Rush, in his letter of May 20, 1818, sets forth very 
 clearly and fully the pretensions of the United States. " As 
 it was not anticipated that any disposition existed in the British 
 government to start questions of title with us on the borders 
 of the South Sea, we could have no possible motive for reserve 
 or concealment with regard to the expedition of the Ontario. 
 In suggesting these ideas to Lord Castlereagh, rather in con- 
 versation than in any formal manner, it may be proper to 
 remark the minuteness of the present interests, either to 
 Great Britain or to the L^nited States, involved in this con- 
 
PRESUMPTION FROM POSSESSION. 143 
 
 cern ; and the unwillingness, for that reason, of this Govern- 
 ment, to include it among the objects of serious discussion 
 with them. At the same time you might give him to under- 
 stand, though not unless in a manner to avoid every thing 
 offensive in the suggestion, that from the nature of things, if 
 in the course of future events it should ever become an object 
 of serious importance to the United States, it can scarcely be 
 supposed that Great Britain would find it useful or advisable 
 to resist their claim to possession by sj^stematic opposition. 
 If the United States leave her in undisturbed enjoyment of 
 all her holds upon Europe, Asia, and Africa, with all her 
 actual possessions in this hemisphere, we may very fairly 
 expect, that she will not think it inconsistent with a very wise 
 or friendly ]K)licy, to v/atch with eyes of jealousy and alarm 
 every possibility of extension to our natural dominion in 
 North America, which she can have no solid interest to pre- 
 vent, until all possibility of her preventing it shall have 
 vanished." (State Papers, 1821-22, p. 464.) 
 
 Lord Castlereagh in the mean time had admitted to Mr. 
 Rush, that in accordance with the principle of statu quo, which 
 was the basis of the Treaty of Ghent, the United States had 
 a right to be reinstated and to be the party in possession whilst 
 treating of the title. In accordance with this view, orders 
 were transmitted to the agents of the North-west Company 
 at Fort George, and to the commodore of the British naval 
 forces in the Pacific, expressly in conformity to the first article 
 of the Treaty of Ghent, to restore to the government of the 
 United States, through its agent, Mr. Prevost, the settlement 
 of Fort George on the Columbia river. A formal surrender of 
 the post was, in consequence, made and accepted on the 6th 
 of October, 1813; but the North-west Company were still 
 allowed to occupy it under the flag of the United States, 
 pending the final decision of the right of sovereignty between 
 the respective governments. 
 
 Great Britain, in admitting the right of the United States to 
 be the party in possession of Fort George pending the discus- 
 sion of the title to it, attached the most liberal interpretation 
 to the Treaty of Ghent, and certainly gave to the United 
 States, in all future discussions, the advantage of the presump- 
 tion of law, on the ground of possession, as against Great 
 Britain : — " Commodum possidentis in eo est, quod etiamsi 
 ejus res non sit, qui possidet, si modo actor non potuerit suara 
 esse probare, remanet in suo loco possessio." But, beyond 
 
144 PROPOSAL OF THE UNITED STATES. 
 
 this, nothing was conceded. Doubtless, in order to oust the 
 United States, it would now be necessary for Great Britain to 
 make out a perfect and exclusive title, which she does not at- 
 tempt to set up, but the re-occupation of the post by the offi- 
 cers of the United States, expressly in conformity to the Treaty 
 of Ghent, established nothing further than the fact that they 
 were in the possession of it before the war broke out. 
 
 In the mean time negotiations were being carried on in 
 London for the settlement of various points at issue between 
 the two governments — including the fisheries ; the boundary 
 line from the Lake of the Woods westwards ; the settlement 
 at the Columbia river; the indemnification for slaves carried off 
 from the United States ; and the renewal of a treaty of com- 
 merce. It would appear from a letter addressed by Messrs. 
 Gallatin and Rush to Mr. Adams, in October 20, 1818, that in 
 the course of the above negotiations the British commission- 
 ers were altogether unwilling to agree to a boundary line, 
 unless some arrangement was made with respect to the coun- 
 try westward of the Stony Mountains. " This induced us to 
 propose an extension of the boundary line [as drawn along the 
 49th degree of north latitude, from the Lake of the Woods to 
 the Stony Mountains,] due west to the Pacific Ocean. We 
 did not assert that the United States had a perfect right to that 
 country., hut insisted that their claim was at least good against 
 Great Britain, The 49th degree of north latitude had, in 
 pursuance of the Treaty of Utrecht, been fixed indefinitely as 
 the line between the northern British possessions and those of 
 France, including Louisiana, now a part of our territories. 
 There was no reason wliy, if the two countries extended their 
 claims westward, the same line should not be continued to 
 the Pacific Ocean. So far as discovery gave a claim, ours to 
 the whole country on the waters of the Columbia River, was 
 indisputable. It had derived its name from that of the 
 American ship, commanded by Captain Gray, who had first 
 discovered and entered its mouth. It was first explored from 
 its sources to the ocean by Lewis and Clarke, and before the 
 British traders from Canada had reached any of its waters ; 
 for it was now ascertained that tiie river Tacoutche-Tesse, 
 discovered by Mackenzie, and which he had mistaken for the 
 Columbia, was not a branch of that river, but fell into the 
 sound called 'the Gulf of Georgia.' The settlement at the 
 place called Astoria, was also the first permanent cstablish- 
 ruent made in that qunrtcr. The British plenipotentiaries 
 
CONVENTION OF 1818. 145 
 
 asserted that former voyages, and principally that of Captain 
 Cook, gave to Great Britain the rights derived from discovery, 
 and they alluded to purchases from the natives south of the 
 River Columbia, which they alleged to have been made prior 
 to the American Revolution. They did not make any formal 
 proposition for a boundary, but intimated that the river itself 
 was the most convenient that could be adopted, and that they 
 would not agree to any that did not give them the harbour at 
 the mouth of the river, in common with the United States." 
 [State Papers, 1819-20, p. 169.] 
 
 These negotiations were brought to a close by the Conven- 
 tion of October 20, 1818, in which, however, nothing defi- 
 nitive was concluded in regard to the settlement on the 
 Columbia river. By the third article it is agreed, that any 
 such country as may be claimed by either party on the north- 
 west coast of America, on the continent 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 and signature of this treaty, 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 last-mentioned 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 two 
 high contracting parties in that respect being to prevent dis- 
 putes and differences amongst themselves." [Martens' Nou- 
 veau Recueil de Traites, iv., p. 576.] 
 
 Thus much, however, may be considered to have been de- 
 finitively recognized by the article just cited, that both par- 
 ties had claims to territory west of the Stony Mountains, but 
 not exclusive claims ; it being implied, by the provision that 
 the agreement should not be taken to affect the claims of 
 any other Power or State to any part of the said country, 
 that other Powers might likewise have claims. 
 
 By the previous article of this treaty, the object of the fra- 
 mers of the second article of the Treaty of 1783 was at last 
 accomplished. By that article it had been agreed, that the 
 western boundary of the United States should be defined by 
 a line " drawn from the most north-western point of tiie Lake 
 of the Woods on a due west courFC to the River Mississippi ; 
 thence by a lin? to be drawn along the middle of the said 
 
146 EXCLUSIVE CLAIMS ON NEITHER SIDE. 
 
 River Mississippi, until it shall intersect the northernmost part 
 of the thirty-first degree of north latitude." At the time, 
 then, when Gray crossed the bar of the Columbia river in 
 1792, and first entered the estuary of that river, there was 
 no question about any title of the United States to territories 
 west of the River Mississippi. The boundaries were the 
 Atlantic Ocean on the east, and the River Mississippi on the 
 west. 
 
 The framers, however, of the second article of the Treaty 
 of 1783, were ignorant of the true position of the sources of 
 the Mississippi, It was in consequence stipulated by the 
 fourth article of the subsequent Treaty of 1794, that a "joint 
 survey of the river from one degree below the falls of St. 
 Anthony, to the principal source or sources of the said river, 
 and of the parts adjacent thereto," should be made ; and if, 
 on the result of the survey, it should appear that the river 
 could not be intersected by the above-mentioned line, the 
 parties were to regulate the boundary line by amicable nego- 
 tiation, according to justice and mutual convenience, and in 
 conformity to the intent of the Treaty of 1783. This joint 
 survey never took effect. In 1798, however, Mr. Thomson, 
 the astronomer of the North-west Company determined the 
 latitude of the sources of the Mississippi to be in 47° 38', and 
 thus it was definitively ascertained, that no line could be drawn 
 due west from the north-western point of the Lake of the 
 Woods, which is in latitude 49° 37', so as to meet the head- 
 waters of the Mississippi. In consequence, by a convention 
 signed on the 12th of May 1803, by Mr. Rufus King and 
 Lord Hawkesbury, it was agreed that the boundary should be 
 a line from the north-west corner of the Lake of the Woods 
 by the shortest line, till it touched the River Mississippi [Bri- 
 tish and Foreign State Papers, 1819-20, p. 158.] It is to 
 tliis treaty that President Jefferson alludes in his letter of 
 August 1803, referred to by Mr. Pakenham, in his letter of 
 September 12, 1844: — "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." This treaty, however, 
 was never ratified, most probably in consequence of the ces- 
 sion of Louisiana to the United States, by the treaty signed 
 
SOtJRCES OF THE MISSISSIPPI. 147 
 
 at Paris on the 30th April, 1803 ; as this cession gave to the 
 United States the title which France had re-acquired from 
 Spain, by the treaty of St. Ildefonso in 1800, to the western 
 bank of the Mississippi. In consequence, we find that in a 
 convention concluded at London between Messrs. Monroe and 
 Pinckney, and the Lords Holland and Auckland, in 1806, it 
 was agreed by the fifth article, " that a line drawn due north 
 or south [as the case may require,] from the most north- 
 western point of the Lake of the Woods, until it shall inter- 
 sect the 49th parallel of north latitude, and from the point of 
 such intersection due west, along and with the said parallel, 
 shall be the dividing line between his Majesty's territories 
 and those of the United States, to the westward of the said 
 lake, as far as their said respective territories extend in that 
 quarter ; and that the said line shall, to that extent, form the 
 southern boundaries of his Majesty's said territories, and the 
 northern boundary of the said territories of the United States ; 
 provided that nothing in the present article shall be construed 
 to extend to the north-west coast of America or to the terri- 
 tories belonging to or claimed by either party on the continent 
 of America to the westward of the Stony Mountains." (Mar- 
 tens' Recueil des Traites, viii., p. 694.) 
 
 This was the first notice of any claim on the part of the 
 United States to territory west of the Rocky Mountains : it 
 may be presumed that the acquisition of the western bank of 
 the Mississippi formed the ostensible basis of her claim, as on 
 that ground the expedition of Lewis and Clarke had been 
 despatched in the preceding year to follow up the Missouri to 
 its source, and thence to trace down to the Pacific Ocean the 
 most direct and practicable water-communication for the 
 purposes of commerce. It may be observed, that the ar- 
 rangement contemplated by this fifth article was highly fa- 
 vourable to the United States, as their acquired title to 
 Louisiana would not strictly have entitled them to any terri- 
 tory north of the Mississippi. This convention, however 
 was never ratified by the United States, on account of the 
 absence of any provisions to restrain the impressment of 
 British sailors serving on board of American ships. (Schoell, 
 Histoire des Traites de Paix, ch. 40.) 
 
 Mr. Greenhovv, (p. 2S1,) in alluding to the negotiations 
 antecedent to this convention, states that Mr. Monroe, on 
 the part of the United States, proposed to Lord Harrowby 
 the 49th parallel of latitude, upon the grounds that this pa- 
 
148 COMMIiSIONERS UNDER TREATY OF UTRECHT. 
 
 rallel had been adopted and definitively settled, by commis- 
 saries appointed agreeably to the tenth article of the treaty 
 concluded at Utrecht in 1713, as the dividing line between 
 the French possessions of Western Canada and Louisiana on 
 the south, and the British territories of Hudson's Bay on the 
 north ; and that this treaty, having been specially confirmed 
 in the Treaty of 1763, by which Canada and the part of 
 Louisiana east of the Mississippi and Iberville were ceded to 
 Great Britain, the remainder of Louisiana continued as before, 
 bounded on the north by the 49th parallel." The same fact 
 was alleged by the commissioners of the United State.^, in 
 their negotiations with Spain in 1805, respecting the western 
 boundary of Louisiana. (British and Foreign State Papers, 
 1817-18, p. 322.) 
 
 He further goes on to state, that there is every reason to 
 believe, that though commissioners were appointed, in ac- 
 cordance with the treaty, for the purpose of determining the 
 boundaries between the French and British possessions, they 
 never executed their task, and that no line was ever definitely 
 adopted by the two Governments. 
 
 This opinion of Mr. Greenhow seems to be fully supported 
 by the proofs and illustrations annexed in his Appendix, but 
 his mode of stating the substance of the tenth article of the 
 Treaty of Utrecht is calculated to mislead his readers into 
 supposing, that the northern boundary of Louisiana was 
 under discussion when that article was signed. On the con- 
 trary, the words of the article were as follow : — " But it is 
 agreed on both sides, to determine within a year, by commis- 
 saries to be forthwith named by each party, the limits which 
 are to be fixed between the said Bay of Hudson and the 
 places appertaining to the French; which limits both the 
 British and French subjects shall be wholly forbid to pass 
 over, or thereby go to each other by sea or by land. The 
 same commissaries shall also have orders to describe and 
 settle in like manner the boundaries between the oi^^er British 
 and French colonies in those parts." 
 
 On this article Mr. Anderson, in his History of Commerce, 
 published in 1801, vol. iii., p. 50, observes, under the events 
 of the year 1713 : — " Although the French King yielded to the 
 Queen of Great Britain, to be possessed by her in full right 
 for ever, the Bay and Straits of Hudson, and all parts thereof, 
 and within the same, then possessed by France ; yet the 
 leavinfT the boundaries between Hudson^s Bay and the north 
 
Hudson's bay boundaries. 149 
 
 parts of Canada, belonging to France, to be determined by 
 commissaries within a year, was, in efiect, the same thing as 
 giving up the point altogether, it being well known to all 
 Europe, that France never permits her commissaries to 
 determine matters referred to such, unless it can be done 
 with great advantage to her. Those houndaries therefore 
 have never yet been settled, although both British and 
 French subjects are by that article expressly debarred from 
 passing over the same, or merely to go to each other by sea 
 or land." 
 
 The object of the tenth article of the Treaty of Utrecht 
 was to secure to the Hudson's Bay Company the restoration 
 of the forts and other possessions of which they had been de- 
 prived at various times by French expeditions from Canada, 
 and of which some had been yielded to France by the seventh 
 article of the Treaty of Ryswick. By this latter treaty Louis 
 XIV. had at last recognised William III. as King of Great 
 Britain and Ireland, and William in return had consented that 
 the principle of uhi 'possidetis should be the basis of the nego- 
 tiations between the two crowns. By the tenth article, how- 
 ever, of the Treaty of Utrecht, the French King agreed to 
 restore to the Queen (Anne) of Great Britain, " to be pos- 
 sessed in full right for ever, the Bay and Straits of Hudson, 
 together with all lands, seas, sea coasts, rivers and places 
 situate in the said bay and straits, and which belong thereto, 
 no tracts of land or sea being excepted, which are at present 
 possessed by the subjects of France." The only question 
 therefore for commissaries to settle, were the limits of the Bay 
 and Straits of Hudson, coastwards, on the side of the French 
 province of Canada, as all the country drained by streams 
 entering into the Bay and Straits of Hudson were by the 
 terms of the treaty recognised to be part of the possessions of 
 Great Britain. 
 
 If the coast boundary, therefore, was once understood by 
 the parties, the head waters of the streams that empty them- 
 selves into the Bay and Straits of Hudson indicate the line 
 which at once satisfied the other conditions of the treaty. 
 Such a line, if commenced at the eastern extremity of the 
 Straits of Hudson, would have swept along, through the 
 sources of the streams flowing into the Lake Mistassinnie and 
 Abbitibis, the Rainy Lake, in 48° 30', which empties itself by 
 the Rainy River into the Lake of the Woods, the Red Lake, 
 and Lake Travers. This last lake would have been the ex» 
 
150 BOUNDARY TREATIES. 
 
 treme southern limit, in about 45° 40', whence the line would 
 have wound upward to the north-west, pursuing a serpentine 
 course, and resting with its extremity upon the Rocky Moun- 
 tains, at the southernmost source of the Saskatchawan River, 
 in about the 48th parallel of latitude. Such would have been 
 the boundary line between the French possessions and the 
 Hudson's Bay district; and so we find that, in the limits of 
 Canada, assigned by the Marquis de Vaudreuil himself, when 
 he surrendered the province to Sir J. Ambers t, the Red Lake 
 is the apex of the province of Canada, or the point of depar- 
 ture from which, on the .one side, the line is drawn to Lake 
 Superior ; on the other " follows a serpentine course south- 
 ward to the river Ouabache, or Wabash, and along it to the 
 junction with the Ohio." This fact was insisted upon by 
 the British Government in their answer to the ultimatum of 
 France, sent in on the 1st of September, 1761 ; and the map, 
 which was presented on that occasion by Mr. Stanley, the 
 British minister, embodying those limits, was assented to in 
 the French Memorial of the 9th of September. (Historical 
 Memorial of the Negotiations of France and England from 
 March 26th to September 20th, 1761. Published at Paris, 
 by authority.) By the fourth article, however, of the 
 Treaty of 1763, Canada was ceded in full, with its depen- 
 dencies, including the Illinois ;• and the future line of demar- 
 cation between the territories of their Britannic and Christian 
 Majesties, on the continent of America, was, by the seventh 
 article, irrevocably fixed to be drawn through the middle of 
 the River Mississippi, jfrom its source to the river Iberville, 
 and thence along the middle of the latter river and the Lakes 
 Maurepas and Pontchartrain to the sea. Thenceforward the 
 French territory in North America was confined to the 
 western bank of the Mississippi, and this was the Louisiana 
 which was ceded by France to Spain in 1769, by virtue of 
 the treaty secretly concluded in 1762, but not promulgated 
 till 1765. There would have been no mistake as to the 
 boundaries of Louisiana, Canada, and the Hudson's Bay ter- 
 ritories, as long as they were defined to be the aggregate of 
 the valleys watered by the rivers flowing into the Gulf of 
 Mexico, the Gulf of St. Lawrence, and the Bay of Hudson 
 respectively. The difficulty in executing the provisions of 
 boundary treaties in America, has arisen chiefly from adopt- 
 ing the data which incorrect maps have furnished, to which 
 there has been nothing in nature corresponding, and from 
 
LIMITS OP FRENCH POSSESSIONS. 151 
 
 agreeing to certain parallels of latitude, as appearing from 
 those maps to form good natural frontiers, but which have 
 been found upon actual survey to frustrate the intentions of 
 both parties. 
 
 The relative positions of the Lake of the Woods, the 
 Red Lake, and the northernmost source of the Mississippi, 
 were evidently not understood by the parties to the 2d article 
 of the Treaty of 1783, when it was proposed to continue a 
 line from the northwestern point of Lake Superior through 
 the Long Lake, and thence to the Lake of the Woods, and 
 due west to the Mississippi. In order to hit off the sources 
 of the Mississippi, which was the undoubted purport of the 
 treaty, the line should have been drawn from the western- 
 most point of Lake Superior up the river St. Louis, and 
 thence it might have been carried due westward to the source 
 of the Mississippi in 47^ 38'. No definite substitute was pro- 
 posed in the Treaty of 1794, which admitted the uncertain 
 character of the proposed frontier ; for even then the country 
 had not been surveyed, and as neither of the conventions of 
 1803 nor 1806 was ratified by the United States, *nor could the 
 respective plenipotentiaries come to any agreement on the 
 subject at the negotiation of the Peace at Ghent, the question 
 remained unsettled, until it was at last arranged by the pro- 
 visions of the 2d article of the Convention of 1818, that the 
 boundary line agreed upon in 1806 should be the frontier 
 westward as far the Rocky Mountains. 
 
 If this view be correct of the boundary line of the Hud- 
 son's Bay territory, as settled by the Treaty of Utrecht, and 
 of the western limit of Canada, as expressed upon its sur- 
 render to Great Britain, it will be conclusive against the 
 opinion that the French possessions ever extended indefi- 
 nitely northwestward along the continent of North Ame- 
 rica. 
 
 It should be kept in mind, that the Treaty of Utrecht was 
 signed in the interval between the grant to Crozat in 1712 
 and the charter of Law's Mississippi Company in 1717. By 
 the former grant Louisiana had been definitely limited to the 
 head- waters of the Mississippi and the Missouri, and before 
 the subsequent annexation of the Illinois to the province of 
 Louisiana in 1717, all the territory watered by the streams 
 emptying themselves into the Bay of Hudson had been ac- 
 knowledged by France to be part of the possessions of the 
 Crown of England. As then the Hudson's Bay territories 
 
152 NORTHERN LIMITS OF THE ILLINOIS. 
 
 were implied by that treaty to extend up to the Red Lake ; 
 and Lake Travcrs, this would definitely bar the French title | 
 further north ; but the declaration of the French authorities 
 themselves, on the surrender of Canada, that its boundary j 
 rested upon the Red Lake, will still more decisively negative ; 
 the assertion that Louisiana, after 1717, extended "to the [ 
 most northern limit of the French possessions in North i 
 America, and thereby west of Canada and New France," I 
 unless it can be shown that the Illinois country extended to ' 
 the west of the Red Lake, which was not the fact. This j 
 question, however, will be more fully discussed in the next i 
 chapter. 
 
153 
 
 CHAPTER XII. 
 
 ON THE LIMITS OF LOUISIANA. 
 
 Hernando de Soto discovers the Mississippi, in 1542. — 'British Discoveries 
 in 1654 and 1670.— French Expeditions.— De la Salle, in 1682.— Set- 
 tlement in the Bay of St. Bernard, in 1685.~D'Iberville, in 1698,— 
 Charter of Louis XIV. to Crozat, in 1712. — The Illinois annexed, in 
 1717, in the Grant to Law's Mississippi Company — The Treaty of 
 Paris, in 1763. — Secret Treaty between France and Spain. — Louisiana 
 ceded to Spain, in 176'J. — Retroceded to France, in 1800, by the secret 
 Treaty of San Ildefonso. — Transferred by Purchase to the United 
 States, in 1803. — Discussions with Spain as to the Boundaries of Lou- 
 isiana. — Grants by Charter only valid against other Nations upon Prin- 
 ciples recognised by the Law of Nations. — Western Boundaries of Lou- 
 isiana. — Evidence of Charters against the Grantors. — Conflict of Titles 
 between France and England on the Ohio, between France and Spain 
 on the Missouri. — Title of Great Britain by Treaties. — Extent of New 
 France westwardly. — Escarbot's Histoire de la Nouvelle France. — 
 Map of 1757. — JefFerys' History of the French Dominions in Amer- 
 ica. — Questionable Authority of Maps. 
 
 The Spaniards are entitled to claim for their countryman 
 Hernando de Soto and his followers the merit of having first 
 discovered the River Mississippi. About the same time that 
 Vasquez de Coronado vv^as despatched to explore the district 
 which is supposed to correspond to the modern province of 
 Sonora, in search of the great city of Cibola and the rich 
 country of Quivira, the Viceroy Mendoza granted a commis- 
 sion to Soto for the discovery of Florida, which at that time 
 was the general name for the countries on the northern shores 
 of the Gulf of Mexico. According to the Spanish accounts, 
 Soto and his followers succeeded, in 1542, in marching across 
 the continent from Apalache, to the great river (Mississippi,) 
 and thence penetrated as far west as the Rio Negro. Soto 
 himself, however, died at Guachoya, and his companions, hav- 
 ing committed the body of their leader in a hollow tree to the 
 river, descended the Mississippi in boats, and after a series of 
 conflicts with the natives, succeeded in reaching the Mexican 
 Gulf, under the guidance of Luis de Moscoso and Juan de 
 Afiasco. Thence they continued their voyage westward 
 
154 FRENCH EXPEDITIONS. 
 
 along the coast until they arrived at Panuco, which was the 
 northernmost part of New Spain, being within a i^cw miles of 
 the sea, a little higher up the river than the modern Tampico. 
 (Herrera, Decade iv., ch. vii. and x., British and Foreign 
 State Papers, 1817-18, p. 427.) 
 
 The Spaniards, however, do not appear to have availed 
 themselves of this discovery of the mouth of the Mississippi 
 for the purpose of settlement. On the other hand, the north- 
 ern branches of the river appear to have been first explored 
 by subjects of other powers than Spain, in the latter portion 
 of the seventeenth century. Mr. Greenhow (p. 277) has 
 inserted an extract from Jefferys' History of the French Do- 
 minions in America, published in 1754, to the effect that " the 
 Mississippi, the chief of all the rivers of Louisiana, which it 
 divides almost into two equal parts, was discovered by Colo- 
 nel Wood, who spent almost ten years, or from 1654 to 1664, 
 in searching its source, as also by Captain Bolt, in 1670." 
 No further particulars are given by Jefferys, but it may be 
 observed that both the above persons were British subjects. 
 
 In the year 1678, the French Government determined upon 
 an expedition to explore the western parts of New France, 
 and to discover, if possible, a road to penetrate to the Spanish 
 possessions in Mexico. In consequence, Louis XIV. issued 
 letters patent to the Sieur de la Salle, to authorise him to ex- 
 ecute this enterprise, which he commenced towards the end 
 of the following year. It was not, however, till February 
 1682, that he reached the river Colbert or Mississippi, by fol- 
 lowing the course of the Illinois River. His voyage down the 
 Mississippi was accomplished by the 7th of April following, 
 and on the 9th, La Salle took formal possession, in the name 
 of the French monarch, " of the country of Louisiana, from 
 the mouth of the great river St. Louis, otherwise called Ohio, 
 on the eastern side, and also above the River Colbert or Mis- 
 sissippi, and the rivers which discharge themselves into it, 
 from its source in the country of the Kious or Nadiouessious, 
 as far as its mouth at the sea, or Gulf of Mexico ;" and " up- 
 on the assurance which they had received from all the natives 
 through whose country they had passed, that they were the 
 first Europeans who had descended or ascended the said river 
 Colbert, they hereby protested against all those who may in 
 future undertake to invade any or all of these countries, peo- 
 ple, or lands above described, to the prejudice of the right of 
 his Majesty, acquired by the consent of the nations herein 
 named." 
 
crozat's grant. 165 
 
 The proc^s-verbal drawn up on this occasion, of which the 
 above is an extract, which is preserved in the archives of the 
 Department of the Marine at Paris, was first published by Mr. 
 Jared Sparks of Boston, the well-known author of the Life of 
 Washington, and may be found most readily in Mr. Falconer's 
 able treatise on the discovery of the Mississippi. La Salle, on his 
 return to France, obtained authority to form a colony near the 
 mouth of the Mississippi, but in his voyage outwards he miscal- 
 culated his course, and reached the coast far to the westward of 
 that river. Here indeed, in 1685, he established a settlement in 
 the Bay of St. Bernard, called by him the Bay of St. Louis, 
 which is supposed by some to have been Matagorda Bay, by 
 others to have been the Bay of Espiritu Santo. This colony 
 met with great disasters ; but the French Government did not 
 abandon its object, and in 1698 we find that the illustrious 
 Canadian d'Iberville entered the Mississippi, and established 
 a settlement at about one hundred leagues from its mouth. 
 Before 1710, many French settlements had been made on the 
 banks of the great river, but it was not until 1712 that a royal 
 charter was granted by the French King to Antoine Crozat, 
 which is the earliest document relied upon to establish the 
 limits of Louisiana, and which Mr. Greenhow has inserted in 
 his work, (p. 277.) 
 
 " Nous avons par ces presentes, signes de notre main, eta- 
 bli, et etablissons ledit Sieur Crozat, pour faire seul le com- 
 merce dans toutes les terres par nous possedees, et bornces 
 par le Nouveau Mexique, et par celles des Anglais de la Caro- 
 line, tous les etablissemens, forts, havres, rivieres, et princi- 
 palement le port et havre de I'isle Dauphine, appellee autrefois 
 de Massacre, le fleuve St. Louis, autrefois appellee Mississippy, 
 depuis le bord de la mer jusqu'aux Illinois, ensemble les rivi- 
 eres St. PhiHppe, autrefois appellee des Missourys, et St. 
 Hierosme, autrefois appellee Ouabache, avec tous les pays, 
 contrees, lacs dans les terres, et les rivieres qui tombent di- 
 rectement ou indirectement dans cette partie du deuve St. 
 Louis. Voulons que les dites terres, contrees, fleuves, rivi- 
 eres et isles, soient et demeurent compris sous le nom du 
 gouvernement de la Louisiane, qui sera dependant du gou- 
 vernement general de la Nouvelle France, auquel il demeurera 
 subordonne ; et voulons en outre que toutes les terres que nous 
 possedons, depuis les Illinois, soient reunis, en tant que besoin 
 est, au gouvernement general de la Nouvelle France, et en 
 fassent partie : nous reservant neanmoins d'augmenter, si 
 
166 
 
 nous le jugeons a-propos, I'etendue du gouvernement du dlt 
 pays de Loulsiane.^^ 
 
 liOuisiana, it will be thus seen, according to this authorita- 
 tive document of the French crown, was the country water- 
 ed by the Mississippi, and its tributary streams from the sea- 
 shore to the IlUnois : such was the limitation aflixed to the 
 province by the French themselves ; and, by the same pub- 
 lic instrument, all the rest of the French possessions were 
 united under the government of New France. It is true that 
 the Illinois was subsequently annexed to Louisiana by a royal 
 decree in 1717, after Crozat had relinquished his charter, and 
 the whole region was granted to Law's Mississippi Company ; 
 but the Illinois were still spoken of as the Illinois, and the 
 district was not merged in Louisiana, though it was annexed 
 to that province, to give the company access to Canada, in 
 which the monopoly of the beaver-trade had been granted to 
 them. It has been already observed, that the limits of the 
 Hudson's Bay territories and French Canada were settled by 
 the peace of Utrecht, in 1713 : one great object of that treaty 
 was to provide against the commercial disputes of the subjects 
 of the two crowns, which had led to a series of conflicts on 
 the shores of Hudson's Bay ; it was in furtherance of this ob- 
 ject that the fur-trade of Canada was now diverted from the 
 St. Lawrence to the Mississippi, by this grant of the monopoly 
 of the beaver-trade to the Compagnie d'Occident, and the an- 
 nexation of the Illinois country to Louisiana. 
 
 Upon the surrender of Canada to the British arms, consid- 
 erable discussion arose as to the respective limits of the pro- 
 vinces of Canada and Louisiana. The British Government 
 insisted, as already stated, p. 150, on a line which would take 
 in the river Ouabache, as far as its junction with the Ohio ; 
 and from thence along the Ohio to the Mississippi, the country 
 to the south of the Ohio being at this time either British pos- 
 sessions, as part of Virginia, or occupied by Indian tribes. In 
 the course of these negotiations, the Marquis de Vaudreuil, 
 who signed the surrender, published his own account of what 
 passed between Sir J. Amherst and himself, of which he con- 
 sidered the English account to be incorrect. " On the officer 
 showing me a map which he had in his hand, I told him the 
 limits were not just, and verbally mentioned others, extend- 
 ing Louisiana on one side to the carrying-place of the Miamis, 
 which is the height of the lands whose rivers run in the Oua- 
 bache ; and on the other to the head of the river of the lUi- 
 
VALIDITY OF CHARTERS. 157 
 
 nois" [Annual Register, 1761, p. 268.] Even thus, then, 
 all to the north of the Illinois was admitted to be Canada. 
 However, the French Government, in its memorial of the 9th 
 September, 1761, " agreed to cede Canada in the most am- 
 ple manner, and to admit the line on which England rested 
 her demand, as, without doubt, the most extensive bound 
 which can be given to the cession." In accordance with this 
 we find that, by the seventh article of the Treaty of Paris, 
 the French possessions v/ere declared to be thenceforth limit- 
 ed by the mid-channel of the Mississippi, from its source to the 
 River Iberville. 
 
 The Treaty of Paris, however, has not furnished the only 
 occasion upon which intricate discussions have arisen re- 
 specting the limits of Louisiana. By a secret treaty with 
 Spain, made in 1762, but not signed till 1764, France ceded 
 to her all the country known under the name of Louisiana. 
 This transfer, however, was not promulgated till 1765, two 
 years after the Treaty of Paris had been signed by France, 
 Spain, and Great Britain ; nor did the Spaniards obtain pos- 
 session of the country till 1769. From that time Spain re- 
 tained it till 1800, when she retroceded it to France by the 
 secret Treaty of San Ildefonso, in exchange for an augmen- 
 tation of the territories of the Duke of Parma in Italy. 
 France, having thus been reinstated in possession of her an- 
 cient province, found she had unexpectedly given alarm and 
 umbrage to the United States of America, and, in order to 
 detach them from their disposition to unite with Great Britain, 
 ceded it in full to the United States, in 1803, for the sum of 
 sixty thousand francs. This led to a protracted negotiation 
 between the United States and Spain, as to the limits of Lou- 
 isiana, on the side both of Florida and Mexico respectively ; 
 which, though commenced in 1805, was not concluded till 
 1818. The claims of the two states are discussed in full, 
 in a correspondence which may be found in the British and 
 Foreign State Papers for 1817-18, and 1819-20. 
 
 The United States, in the course of these discussions, in- 
 sisted upon the limits marked out in the letters patent which 
 Louis XIV. had granted, to Crozat, on the authority of the 
 discovery inade, and of the possession taken, by Father Hen- 
 nepin in 1680, and by La Salle in 1682. Thus the validity 
 of the title conveyed by the letters patent was sought to be 
 grounded by the United States upon principles recognised by 
 the law of nations. Charters, by their own intrinsic force, 
 
158 WESTERN LIMITS OF LOUISIAIVA. 
 
 can only bind those who arc subject to the authority from 
 which they emanate : against the subjects of other states they 
 can only avail on the supposition that the title ot" the grantor 
 is valid by the law of nations. Thus the charter given by 
 Charles II. to the Hudson's Bay Company, granted to them, 
 hy virtue of the discoveries made in those parts, all the lands, 
 &c., within the entrance of the straits commonly called Hud- 
 son's Straits, " which are not now actually possessed by any 
 of our subjects, or hy the subjects of any other Christian Prince 
 or State ;" and thus we find in the negotiations antecedent to 
 the Treaty of Utrecht, it was expressly urged in support of 
 the British title to the territories of Hudson's Bay, '• that 
 Mons. Frontenac, then Governor of Canada, did not complain 
 of any pretended injury done to France by the said Compa- 
 ny's settling a trade and building of forts at the bottom of 
 Hudson's Bay, nor made pretensions to any right of France 
 to that bay, till long after that time." [Anderson's History of 
 Commerce, a. d. 1670, vol. ii., p. 516.] In other words, the 
 title which this charter created was good against other sub- 
 jects of the British Crown, by virtue of the charter itself; but 
 its validity against other nations rested on the principle that 
 the country was discovered by British subjects, and, at the 
 time of their settlement, was not occupied by the subjects of 
 any other Christian prince or state ; and in respect to any 
 special claim on the part of France, the non-interference of 
 the French governor was successfully urged against that 
 Power as conclusive of her acquiescence. 
 
 That the province of Louisiana did not at any time extend 
 further north than the source of the Mississippi, either if 
 we regard the evidence of public instruments in the form of 
 charters and treaties, or of historical facts, is most assuredly 
 beyond the reach of argument. What, however, were the 
 western limits of the province, has not been so authoritatively 
 determined. Mr. Greenhow, (p. 2S3,) after examining this 
 question, concludes thus : — " In the absence of more direct 
 light on the subject from history, we are forced to regard the 
 boundaries indicated by nature — namely, the highlands sepa- 
 rating the waters of the Mississippi from those flowing into 
 the Pacific or Californian gulf — as the true western hoimda.' 
 ries of the Louisiana ceded by France to Spain in 1762, and 
 retroceded to France in 1800, and transferred to the United 
 States by France in 1803 : but then it must also be admitted, 
 for the same as well as for another and stronger reason, that 
 
CONFLICT OF TITLES. 159 
 
 the British possessions further north were bounded on the 
 coast by the same chain of highlands; for the charter of the 
 Hudson's Bay Company, on which the right to those posses- 
 sions was founded and maintained, expressly included only 
 the countries traversed by the streams emptying themselves 
 into Hudson's Bay." 
 
 Charters may certainly be appealed to as evidence against 
 the parties which have granted them, that on their own ad- 
 mission they do not extend their claim beyond the limits of 
 them, and Mr. Greenhow is perfectly justified in confining 
 the limits of Rupert's Land, for such seems to have been the 
 name recognised in the charter, to the plantation in Hudson's 
 Bay, and the countries traversed by the streams emptying 
 themselves into the Bay ; but the right to those possessions, 
 as against France, was not founded upon the charter, but 
 generally upon recognised principles of international law, and 
 especially upon the Treaty of Utrecht. So in respect to the 
 northern limit of Louisiana, Crozat's grant, or the grant to 
 Law's Mississippi Company, might be alleged against France, 
 to show that its limits did not extend further north, on the 
 right bank of the Mississippi, than the Illinois. On the other 
 hand, the Treaty of Paris might be appealed to, in order to 
 show against Great Britain, that it did extend on the right 
 bank of the Mississippi as far north as the sources of that 
 river. Again, in respect to the western boundary of Louis- 
 iana, Crozat's grant might be cited against France, to show 
 that the province of Louisiana did not extend further west- 
 ward than the confines of New Mexico. What, however, was 
 the boundary of New Mexico, does not seem to have been 
 determined by any treaty between France and Spain. France 
 seems, indeed, from the words of Crozat's grant, to have con- 
 sidered herself exclusively entitled to the Missouri river on 
 the right bank, and to the Ohio on the left. The claims, 
 however, of Great Britain, clashed with her on the banks of 
 the Ohio, as remarked by Mr. Calhoun in his letter to Mr. 
 Packenham of Sept. 3, 1844. In an analogous manner the 
 Spanish title conflicted with the French title on the banks of 
 the Missouri ; for we find that, in the negotiations antecedent 
 to the Treaty of Washington, in 1819, the Spanish commis- 
 sioner maintained, that after Santa Fe, the capital of New 
 Mexico, was built, Spain considered all the territory lying to 
 the east and north of New Mexico, so far as the Mississippi 
 and Missouri, to be her property. [British and Foreign State 
 
160 JEFPEHYS* HISTOKY. 
 
 Papers, 1817-18, p. 438.] The United States, indeed, on 
 succeeding to the French title, decHned to admit that the 
 Spanish frontier ever extended so far to the north-east as was 
 alleged ; on the other hand, the letter of President Jefferson, 
 of August 1803, shows that they considered their own claims 
 to be limited by "the high lands on the western side of the 
 Mississippi, enclosing all its waters, [the Missouri of course."] 
 
 By the Treaty of Utrecht, the British possessions to the 
 north-west of Canada were acknowledged to extend to the 
 head-waters of the rivers emptying themselves into the bay of 
 Hudson : by the Treaty of Paris, they were united to the Brit- 
 ish possessions on the Atlantic by the cession of Canada and 
 all her dependencies ; and France contracted her dominions 
 within the right bank of the Mississippi. That France did 
 not retain any territory after this treaty to the north-west of 
 the sources of the Mississippi, will be obvious, when it is kept 
 in mind that the sources of the Mississippi are in 47° 35', 
 whilst the sources of the Red River, which flows through Lake 
 Winnipeg, and ultimately finds its way by the Nelson River 
 into the bay of Hudson, are in Lake Travers, in about 45° 40'. 
 
 Some writers are disposed to consider that the limits of 
 New France extended westvvardly across the entire continent 
 to the Pacific Ocean, but no authoritative document has been 
 cited to show that the French Crown ever claimed such an 
 extent of unknown territory, or that its claim was ever ad- 
 mitted. Escarbot's description, in 1617, of New France, 
 which, however, is of no authority, embraces within its limits 
 almost the entire continent of North America, as may be seen 
 from the extract from his " Histoire de la Nouvelle France," 
 which M. Duflot de Mofras gives: "Ainsi nostre Nouvelle 
 France a pour limites du cote d'ouest les terres jusqu'a la mer 
 dite Pacifique en deca du tropique du Cancer ; au midi, les 
 cotes de la mer Atlantique du cote do Cube et de I'lsle Hes- 
 pagnole ; au levant, la mer du Nord qui baigne la Nouvelle 
 France ; et au septentrion, cette terre qui est dite inconnue, 
 vers lamer glacce jusqu'au pole arctique." 
 
 The same author cites a map of the year 1757, as confirma- 
 tory of this view, in which a great river is exhibited in 45°, on 
 the north-west coast of America, the direction of which is 
 exactly that of the Columbia ; but Mr. Grecnhow, in the new 
 edition of his work, p. 159, states, that this map was drawn 
 and presented by the French commissaries appointed under 
 the Treatv of Aix-la-Chapelle in 1748, to expose the extrava- 
 
AUTHORITY OF MAPS. 161 
 
 gant pretensions of the British in North America, and that it does 
 not contain the word Canada^ or Nouvelle France, or any other 
 sign of French dominion, the whole division of the continent, 
 between 48° and 31° north latitude, being represented by- 
 strong lines and express notes, as included in the limits of the 
 British provinces ; nor does it show any large river falling in- 
 to the Pacific north of the peninsula of California, nor any 
 river entering that ocean north of 36°. A map perhaps bet- 
 ter authenticated than this may be referred to in the History 
 of the French Dominions in America, by Jefferys, the geo- 
 grapher to the King of England, in 1760, which does not, in- 
 deed, extend New France to the Pacific : on the contrary, 
 whilst it exhibits the River of the West flowing in a course 
 not unlike that of the Columbia, it does not include the Paci- 
 fic Ocean at all in its limits, but leaves the west coast of the 
 continent in its real obscurity. 
 
 Maps, however, are but pictorial representations of suppos- 
 ed territorial limits, the evidence of which must be sought for 
 elsewhere. There may be cases, it is true, where maps may 
 be evidence ; when, for instance, it has been specially provid- 
 ed that a particular map, such as Melish's Map of North 
 America, shall be the basis of a convention : but it is to be re- 
 gretted that maps of unsurveyed districts should ever have 
 been introduced into diplomatic discussions, where limits con- 
 formable to convenient physical outlines, such as headlands 
 or water-courses, are really sought for, and are understood to 
 be the subject of negotiation. The pictorial features of a 
 country, which, in such cases, have been frequently assumed 
 as the basis of the negotiation, have not unusually caused 
 greater embarrassment to both the parties in the subsequent 
 attempt to reconcile them with the natural features, than the 
 original question in dispute, to which they were supposed to 
 have furnished a solution. That the name of Nouvelle France 
 should have been applied by French authors and in French maps 
 to the country as far as the shores of the Pacific Ocean, was 
 as much to be expected as that the name of California should 
 have been extended by the Spaniards to the entire north-west 
 coast of America, which we know to have been the fact, from 
 the negotiations in the Nootka Sound controversy. 
 
162 
 
 CHAPTER XIII. 
 
 TREATY OF WASHINGTON. 
 
 The Treaty of San Ildefonso. — Ineffectual Negotiations between Spain 
 and the United States, in 1805, respecting the Boundary of Louisiana. 
 — Resumed in ]8l7. — M. Kerlet's Memoir cited by Spain, Crozat's 
 Charter by the United States, as Evidence. — Spain proposes the Mis- 
 souri as the mutual Boundary. — The United States propose to cross 
 the Rocky Mountains, and draw the Line from the Snow Mountains 
 along 41° to tlie Pacific. — Negotiations broken off. — Spain proposes 
 the Columbia River as the Frontier. — Offers the Parallel of 41° to the 
 Multnomah, and along that River to the Sea. — Error in Melish's Map. 
 — The United States propose the Parallel of 41° to the Pacific. — Spain 
 proposes the Parallel of 42° to the Multnomah, and along that River to 
 43°, thence to the Pacific— The 42° Parallel adopted.— Source of the 
 Multnomah or Willamette River, in about 44°. — Wilkes' exploring Ex- 
 pedition — Third Article of the Treaty. — The asserted Rights of Spain 
 to the Californias. — Her Title by Discovery. — The United States de. 
 cline to discuss them. — The asserted Rights of the United States to the 
 Valley of the Mississippi. — Mr. Greenhow's Remarks. — The Spanish 
 Commissioner declines to negotiate. — Design of the President of the 
 United States. — Question of Rights abandoned. — Object of the Spanish 
 Concessions. — Santa Fe. — Ultimate Agreement — Review of the Claims 
 of the two Parties. — Principles of international Law advanced by the 
 United States. — Possession of the Sea-coast entitles to Possession of the 
 interior Country. — Vattel. — Inconsistency of the Diplomatists of the 
 United States. — Treaty of Paris. — Natural Boundary of conterminous 
 Settlements, the Mid-distance. — Vattel. — Wheaton. — Acquisition of 
 Title from Natives barred by first Settlers against other European Pow- 
 ers. — Right of Pre-emption. 
 
 In the same year in which the Convention of 1818 was con- 
 cluded at London between the United States and Great Bri- 
 tain, negotiations were being carried on at Washington be- 
 tween Spain and the United States, with the view of deter- 
 mining the effects of the Treaty of 1803, whereby Louisiana 
 had been ceded by France to the latter power. It had been 
 stipulated in the treaty of San Ildefonso in 1800, that Spain 
 should retrocede " the colony or province of Louisiana, with 
 the same extent which it now has in the hands of Spain, and 
 which it had when France possessed it, and such as it ought 
 to be according to the treaties subsequently made between 
 Spain and other powers." (British and Foreign State Papers, 
 
SPAIN AND THE UNITED STATES. 163 
 
 1817-18, p. 267-9.) The Treaty of 1803 in its turn ceded 
 Louisiana to the United States, '* in the name of the French 
 repubHc, for ever and in full sovereignty, with all its rights and 
 appurtenances, as fully and in the same manner as they have 
 been acquired by the French republic, in virtue of the above- 
 mentioned treaty with his Catholic Majesty." It thus became 
 requisite to determine the limits of this new acquisition of the 
 United States, both on the side of the Fioridas, and on that of 
 New Spain. An examination of the discussion regarding the 
 eastern boundary towards the Fioridas is unnecessary on the 
 pre^sent occasion. The question respecting the western limit 
 was, perhaps, the more difficult to settle, from the circum- 
 stance that Texas was claimed by Spain as a province of 
 New Spain, whilst the United States insisted that it was a por- 
 tion of Louisiana : whilst Spain contended that she had only 
 ceded the Spanish province of Louisiana, the United States 
 maintained that she had retroceded the French colony, Spain 
 thereupon proposed a line which, " beginning at the Gulf of 
 Mexico between the River Carecut or Cascasiu, and the Ar- 
 menia or Marmentoa, should go to the north, passing between 
 Adaes and Natchitoches, until it cuts the Red River," on the 
 ground that the Arroyo-Hondo, which is midway between 
 Natchitoches and Adaes, had been, in fact, considered to be 
 the boundary in 1763. The United States on the other hand, 
 insisted on the Rio Bravo del Norte as the western frontier, 
 on the ground that the settlement of La Salle in the Bay of 
 St. Bernard (Matagorda) carried with it a right to the territory 
 as far as the Rio Bravo. Beyond the Red River Spain pro- 
 posed that the boundary should be determined by commission- 
 ers, after a survey of the territory, then but little known, and 
 a reference to documents and dates, ''which might furnish the 
 necessary light to both governments upon limits which had 
 never been fixed or determined with exactness." (State Pa- 
 pers, 1817-18, p. 321.) Such was the proposal made by Don 
 Pedro Cevallos on the part of Spain, on April 9th, 1805. 
 Messrs. Pinckney and Moore, in reply, proposed a compromise 
 in connection with the western frontier, that a line along the 
 River Colorado, from its mouth to its source, and from thence 
 to the northern limits of Louisiana, should be the boundary ; 
 but the Spanish government decHned to accept their propo- 
 sal, and the negotiations were not resumed till the year 1817. 
 Spain had, in the mean time, during the captivity of the 
 Spanish monarch in France, been unexpectedly deprived of 
 
164 PROPOSED BOUNDARY. 
 
 the greater part of West Florida, in 1810, by the United 
 States, without any declaration 8f war, or stipulation of peace, 
 which could seem to authorise it. On re-opening the nego- 
 tiation in 1817, the Spanish Government, having waived all 
 demands on this head, proposed to cede the two Floridas to 
 the United States in exchange for the territory which lies 
 between the River Mississippi and the well-known limit which 
 now separates, and has separated Louisiana, when France 
 possessed it, before the year 1764, and even before the death 
 of King Charles II. of Spain, from the Spanish province of 
 Texas : so that the Mississippi might be the only boundary 
 of the dominions of his Catholic Majesty and of those of the 
 United States. (State Papers, 1817-1818, p. 356.) 
 
 In the course of the subsequent negotiations, the Spanish 
 commissioner, Don Luis de Onis, in a letter of the 12th of 
 March 1818, refused to admit the authority of the grant of 
 Louis XIV. to Crozat as evidence of the limits of Louisiana, 
 and referred to the memoir drawn up by M. Kerlet, for many 
 years governor of the province before it was ceded to Spain 
 by the Treaty of 1763, containing a description of its proper 
 extent and limits. This memoir had been delivered by the 
 Due de Choiseul, minister of France, to the Spanish ambas- 
 sador at Paris, as a supplement to the Act of Cession of Lou- 
 isiana. (State Papers, 1817-18, p. 437.) On the other 
 hand, the Secretary of State, on the part of the United States, 
 maintained that *' the only boundaries ever acknowledged by 
 France, before the cession to Spain in Nov. 3, 1762, were 
 those marked out in the grant from Louis XIV. to Crozat." 
 She always claimed the territory which Spain called Texas, 
 as being within the limits, and forming part of Louisiana, 
 " which in that grant is declared to be bounded westward by 
 New Mexico, eastward by Carolina, and extending inward to 
 the Illinois, and to the sources of the Mississippi, and of its 
 principal branches." (State Papers, 1817-18, p. 470.) 
 
 These discussions were suspended for a short time, in con- 
 sequence of difficulties between the two governments re- 
 specting the Seminole Indians in Florida ; but on the 24th of 
 October Don Luis d'Onis proposed, that " to avoid all causes 
 of dispute in future, the limits of the respective possessions of 
 both governments to the west of the Mississippi shall be de. 
 signated by a line beginning on the Gulf of Mexico, between 
 the rivers Marmentoa and Cascasiu, following the Arroyo- 
 Hondo, between Adaes and Natchitoches, crossing the Rio 
 
THE COLUMBIA RIVER. 165 
 
 Roxo, or Red River, at 32° of latitude and 9>° of longitude, 
 from London, according to Melish's map, and thence running 
 directly north, crossing the Arkansas, the White, and the 
 Osage Rivers, till it strikes the Missouri, and then following 
 the middle of that river to its source, so that the territory on 
 the right bank of the said river will belong to Spain, and that 
 on the left bank to the United States. The navigation of 
 the Mississippi and Marmentoa shall remain free to the sub- 
 jects of both parties." (State Papers, 1818-19, p. 276.) 
 
 No proposal had as yet been advanced by either party to 
 carry the boundary line across the Rocky Mountains till Oc- 
 tober 31, 1818, when Mr. Adams offered, as the ultimatum of 
 the United States, a line from the mouth of the River Sabine, 
 following its course to 32° N. L., Ihence due north to the 
 Rio Roxo, or Red River, following the course of that river to 
 its source, touching the chain of the Snow Mountains in lati- 
 tude 37° 25' north, thence to the summit, and following the 
 chain of the same to 41°, thence following the same parallel 
 to the South Sea." The Spanish commissioner, in his reply, 
 undertook to admit the River Sabine instead of the Mar- 
 mentoa, on condition " that the line proposed by Mr. Adams 
 should run due north from the point where it crosses the Rio 
 Roxo till it strikes the Missouri, and thence along the middle 
 of the latter to its source ;" but in regard to the extension of 
 the line beyond the Missouri, along the Spanish possessions to 
 the Pacific^ he declared himself to be totally unprepared by 
 his instructions to discuss such a proposal. The negotiations 
 were in consequence broken off. Subsequently, the Spanish 
 commissioner, having received fresh instructions from his go- 
 vernment in a letter of June 16, 1819, proposed to draw the 
 western boundary line between the United States and the 
 Spanish territories from the source of the Missouri to the Co- 
 lumbia River, and along the course of the latter to the Pacific, 
 which Mr. Adams, on the part of the United States, rejected 
 as inadmissible. Don Luis d'Onis thereupon, having ex- 
 pressly waived all questions as to the right of either power to 
 the territory in dispute, and also as to the limits of Louisiana, 
 proposed that the boundary line, as suggested by Mr. Adams, 
 should follow the Sabine river to its source, thence by the 
 94th degree of longitude to the Red River of Natchitoches, 
 and along the same to the 95th degree ; and crossing it at that 
 point, should run by a line due north to the Arkansas, and 
 
 8'* 
 
166 THE MULTNOMAH RIVER. 
 
 along it to its source, thence by a line due west till it strikes 
 the source of the River St. Ciementc or Multnomah, in lati- 
 tude 41°, and along that river to the Pacitic Ocean: the whole 
 agreeably to Melish's mup. This is another very remarkable 
 instance of the danger of referring even to the best maps, 
 when territorial limits are to be regulated by the physical fea- 
 tures of a country. There must have been a monstrous error 
 in Melish's map, which the Spanish commissioner had before 
 him, if such a line could have been drawn upon it from the 
 source of the Arkansas due west to the source of the Mult- 
 nomah, the modern Willamette River. Mr. Adams, in reply, 
 proposed a slightly modified line " to the source of the Ar- 
 kansas in 41°, and thence due west to the Pacific along the 
 parallel of 41° according to Melish's map up to 1818 ; but if 
 the source of the Arkansas should fall south or north of 41°, 
 then the line should be drawn due north or south from its 
 source to the 41st parallel, and thence due west to the sea." 
 This would have been an intelligible line. Don Luis d'Onis 
 then communicated a project of a further modified line from 
 the 100th parallel of longitude west of Greenwich along the 
 middle of the Arkansas to the 42d parallel ; " thence a line 
 shall be drawn westward, by the same parallel of latitude, to 
 the source of the River San Clemente, or Multnomah, fol- 
 lowing the course of that river to the 43° of latitude, and 
 thence by a line due west to the Pacific Ocean." Another 
 counter project was proposed by Mr. Adams on the 13lh of 
 February, and ultimately it was agreed between the parties to 
 admit the parallel of 42° from the source of the Arkansas 
 westward to the Pacific Ocean, with the proviso that if the 
 source of the Arkansas should be north or south of 42°, the 
 line should bo drawn from it south or north to the 42d parallel. 
 It was fortunate tiiat this proviso was ado[)ted, for actual sur- 
 veys have since determined the source of the Arkansas to be 
 at the foot of the Sierra Verde, in about 40° 45' north latitude. 
 On the other hand, as an illustration of the lamentable want 
 of information on the part of the Spanish commissioner in 
 respect to the boundary line which he proposed to be drawn, 
 first of all along the parallel of 41° due west to the source of 
 the Multnomah, and secondly along the parallel of 42° due 
 west to the same river, it may be observed, that the source of 
 t!)is river is ascertained to be very little further south than 
 the 44lh parallel of latitude, as may be seen in the excellent 
 
THE CALIFORNIAS. 167 
 
 American map attached to Commander Wilkes' Exploring 
 Expedition, though even so late as in Mitchell's map for 163 i 
 it is placed in about 42°. 
 
 The Treaty of Washington, or the Floridas, was thus at 
 last concluded on the 22d February, 1819, and by the third 
 article, after specifying the boundary line, as above described, 
 between the two countries west of the Mississippi, it con- 
 cludes thus ; " The two high contracting parties agree to cede 
 and renounce all their rights, claims, and pretensions to the 
 territories described by the said line ; that is to say, the United 
 States hereby cede to his Catholic Majesty, and renounce for 
 ever, all their rights, claims, and pretensions to the territories 
 lying west and south of the above described line ; and in like 
 manner his Catholic Majesty cedes to the United States all 
 his rights, claims, and pretensions to any territories east and 
 north of the said line, and for himself, his heirs and succes- 
 sors, renounces all claim to the said territories for ever.'' (Mar- 
 tens' Nouveau Recueil des Traites, v., p. 333.) 
 
 It will be observed from the words of the above article, 
 that the nature of the rights reciprocally ceded are in no 
 manner specified. It thus becomes necessary to look to the 
 antecedent negotiations to determine this question. In the 
 first communication from the Chevalier d'Onis, on January 
 5, 1818, in respect to the western boundary of Louisiana, we 
 find him assert that " the right and dominion of the Crown 
 of Spain to the north-west coast of America, as high up as 
 the Californias, is not less certain and indisputable (than her 
 claim to West Florida.) the Spaniards having explored as far 
 as the 47th degree in the expedition under Juan de Fuca in 
 1592, and in that of Admiral Fonte to the 55th degree in 
 1640. 
 
 "The dominion of Spain in these vast regions being thus 
 established, and her rights of discovery, conquest, and pos- 
 session, being never disputed, she could scarcely possess a 
 property founded on more respectable principles, whether of 
 the law of nations, of public law, or any others which servo 
 as a basis to such acquisitions as all the independent king- 
 doms and states of the earth consist of." (State Papers, 
 1817-18, p. 427.) 
 
 Mr. Adams, in his reply of January 16, 1813, stated that 
 **the President of the United States considered it would bo 
 an unprofitable waste of time to enter again at large upon 
 topics of controversy, which were at that time [1805] so 
 
1C8 NEGOTIATION'S BROKEN OFF. 
 
 thoroughly debated, and upon which he perceives nothing in 
 your notes, which was not then substantially argued by Don 
 Pedro Cevallos, and to which every reply essential to eluci- 
 date the rights and establish the pretensions on the part of 
 the United States was then given." Without, therefore, no- 
 ticing even in the slightest manner that portion of the Spanish 
 title now for the first time set out in respect of the Californias, 
 and which had not in any manner been alluded to in the pre- 
 vious correspondence, he simply proposed, " the Colorado 
 River from its mouth to its source, and from thence to the 
 northern limits of Louisiana, to be the western boundary ; or 
 to leave that boundary unsettled for future arrangement." It 
 may be observed, that the paramount object of the United 
 States at this moment, was to obtain the cession of the 
 Spanish claims to territories eastward of the Mississippi. 
 [State Papers, ] 817-18, p. 450.] The western frontier was 
 comparatively of less pressing importance. 
 
 Various communications having in the mean time been ex- 
 changed, Mr. Adams at last, in his letter of Oct. 31, 1818, 
 proposed for the first time, on the part of the United States, 
 an extension of the boundary to the Pacific Ocean, namely, 
 a line drawn due west along the 41st parallel. He did not 
 attempt, on this occasion, to contest the position which Spain 
 had taken up in respect to territory west of the Rocky Moun- 
 tains, but contented himself with again asserting, that the 
 rights of the United States to the entire valley of the Missis- 
 sippi and its confluents were established beyond the reach of 
 controversy. Mr. Greenhow [p. 316] observes, " On these 
 positive assertions of the Spanish minister, Mr. J. Q. Adams, 
 the American plenipotentiary and Secretary of State, did not 
 consider himself required to make any comment ; and the 
 origin, extent, and value of the claims of Spain to the north- 
 western portion of America, remained unquestioned during 
 the discussion." 
 
 The Spanish commissioner seems to have regarded the 
 silence of Mr. Adams as a tacit admission that his position 
 was unassailable, and therefore was totally unprepared for the 
 proposal of the United States, if we may judge from his 
 reply : — " What you add respecting the extension of the 
 same line beyond the Missouri, along the Spanish posses- 
 sions to the Pacific Ocean, exceeds by its magnitude and 
 its transcendency all former demands and pretensions stated 
 by the United Slates. Confining, therefore, myself to the 
 
PLAN OF THE TRESIDENT. 169 
 
 power granted to me by my sovereign, I am unable to 
 stipulate any thing on this point. [State Papers, 1818-19, 
 p. 284.] 
 
 Mr. Adams, in his reply of Nov. 30, IBIS, [ibid. 291,] 
 writes, " As you have now declared that you are not autho- 
 rised to agree, either to the course of the Red River, [Rio 
 Roxo,] for the boundary, nor to the 41st parallel of latitude, 
 from the Snow Mountains to the Pacific Ocean, the President 
 deems it useless to pursue any further the attempt at an ad- 
 justment of this object by the present negotiation." Don 
 Luis, in withdrawing for the present moment from the nego- 
 tiation, in his letter of Dec. 12, 1818, [ibid., p. 502,] observes, 
 " I even expressed my earnest desire to conclude the nego- 
 tiation, so far as to admit the removal of the boundary line, 
 from the Gulf of Mexico, on the river Sabine, as proposed 
 by you ; and I only added, that it should run more or less 
 ciDliquely to the Missouri, thereby still keeping in view the 
 consideration of conciliating the wish that your government 
 might have, of retaining such other settlements as might have 
 been formed on the bank of that river, and observing, never- 
 theless, that it was not to pass by New Mexico, or any other 
 •provinces or dominions of the crown of Spain. ''^ 
 
 The Spanish commissioner, after obtaining fresh instruc- 
 tions to authorize him to extend the. boundary line to the Pa- 
 cific Ocean, stated in a letter of Jan. 16, 1819, to Mr. Adams, 
 [State Papers, 1819-20, p. 565,] that *' his Majesty will agree 
 that the boundary line between the two states shall extend 
 from the source of the Missouri, westward to the Columbia 
 River, and along the middle thereof to the Pacific Ocean ; 
 in the hope that this basis would be accepted by the President, 
 " as it presents the means of realizing his great plan of ex- 
 tending a navigation from the Pacific to the remotest points 
 of the northern states." 
 
 This offer was not accepted, and Mr. Adams, in his reply 
 of Jan. 29, 1819, simply stated, "that the proposal to draw 
 the western boundary line between the United States and the 
 Spanish territories on this continent, from the source of the 
 Missouri to the Columbia River, cannot be admitted," (ibid, 
 p. 566 ;) and at the same time he renewed his proposal of 
 the 31st of October last, as to the parallel of 41°. 
 
 Don Luis de Onis, as might be expected, did not accede 
 to this, and in his next letter, of Feb, 1, 1819, writes, "I 
 have proved to you in the most satisfactory manner, that 
 
170 SPANISH CONCESSIONS. 
 
 neither the Red River of Natchitoches, nor the Columbia, 
 ever formed the boundary of Louisiana ; but as you have inti- 
 mated to me that it is useless to pursue the discussion any 
 further, I acquiesce with you tliercin, and I agree that, keep- 
 ing out of view the rights which either party may have to the 
 territory in dispute, we should confine ourselves to the settle- 
 ment of those points which may be for the mutual interest 
 and convenience of both. 
 
 " Upon this view, therefore, of the subject, and considering 
 that the motive for declining to admit my proposal of extend- 
 ing the boundary line from the Missouri to the Columbia, and 
 along that river to the Pacific, appears to be the wish of the 
 President to include, within the limits of the Union, all the 
 branches and rivers emptying into the said River Columbia, I 
 will adapt my proposals on this point, so as fully to satisfy 
 the demand of the United States, without losing sight of the 
 essential object, namely, that the boundary line shall, as far 
 as possible, be natural and clearly defined, and leave no room 
 for dispute to the inhabitants on either side." 
 
 He therefore proposed, as the Red River rose within a few 
 leagues of Santa Fe, the capital of New Mexico, to substitute 
 the Arkansas for the Red River ; so that the line along the Red 
 River should not be drawn further westward than the 95th 
 degree of longitude, and crossing it at that point, should run 
 due north to the Arkansas, and along it to its source ; thence, 
 by a line due west, till it strikes the source of the River St. 
 Clemente, or Multnomah, in latitude 41°, and along that river 
 to the Pacific Ocean. The whole agreeably to Melish's 
 map."— (State Papers, 1819-20, p. 568.) 
 
 Mr. Adams on the other hand, on Feb. 6, 1819, repeated 
 the proposal of the United States as to the line from the 
 source of the Arkansas River being drawn along the pa- 
 rallel of 41° N. L. to the Pacific, with other modifications in 
 the general detail of the boundary. 
 
 This proposal, however, was not accepted, and the Spanish 
 commissioner in his turn, on Feb. 9, proposed a dilferent line, 
 to be drawn " along the middle of the Arkansas to the 42° of 
 latitude ; thence a line shall be drawn westward by the same 
 parallel of latitude to the source of the River San Clemente or 
 Multnomah, following the course of that river to the 43° of 
 latitude, and thence by a line to the Pacific Ocean." (Ibid. 
 p. 570.) 
 
 Mr. Adams, in his answer of February 1-3, 1810, still re- 
 
CONTKAST OF CLAIMS. 171 
 
 tained the parallel of 41° of latitude from the source of the 
 Arkansas to the South Sea, according to Melish's map, (Ibid, 
 p. 575.) 
 
 The Chevalier de Onis, on the 16th of February 1819, 
 ultimately agreed " to admit the 42° instead of the 43° of 
 latitude from the Arkansas to the Pacific Ocean." (Ibid. 
 p. 580.) 
 
 These extracts from the documentary correspondence pre- 
 liminary to the Treaty of 1819, will show the nature of the 
 claims maintained by the two parties, and thus serve to ex- 
 plain the meaning of the third article of the treaty. Spain 
 asserted her right and dominion over the northwest coast of 
 America as high up as the Californias, as based upon the dis- 
 coveries of Juan de Fuca in 1592, and Admiral Fonte in 
 1640. The United States made no claim to territory west of 
 the Rocky Mountains. On the other hand, the United States 
 asserted her right over the coasts of the Mexican Gulf from 
 the Mississippi to the Rio Bravo by virtue of Crozat's grant, 
 and of the settlement of La Salle in the Bay of St. Bernard, 
 whilst Spain maintained that the expedition of Hernando de 
 Soto and others entitled her by discovery to the entire coasts 
 of the Mexican Gulf, and that the crown of Spain, before 
 1763, had extended her dominion eastward over the right 
 side of the Mississippi from its mouth to the mouth of the 
 Missouri, and northward over the right side of the latter river 
 from its mouth to its source ; in other words, that the depen- 
 dencies of the Spanish province of New Mexico extended as far 
 as the Missouri and the Mississippi, and the Spanish province 
 of Texas as far as the Red River and Mississippi. The rights, 
 claims, and pretensions, therefore, to any territories lying 
 east and north of the parallel of 42°, which Spain, by the 3rd 
 article of the Treaty of 1819, ceded to the United States, 
 had respect to the Spanish province of Texas, the Spanish 
 province of New Mexico, and the Californias ; the rights, 
 claims, and pretensions which the United States ceded to his 
 Catholic Majesty to any territories west and south of this 
 line, had reference to the coasts of the Gulf of Mexico as far 
 the Rio Bravo, and the inland country ; for no claim or pre- 
 tension had been advanced by the United States to territory 
 beyond the Rocky Mountains, and the object of the negotia- 
 tion was expressly to determine the boundaries of Louisiana, 
 which the United States insisted had been ceded to them in 
 the full extent in which it had been possessed by France, 
 
172 POSSESSION OF THE SEA-COAST. 
 
 according to the limits marked out by Louis XIV. in his 
 grant to Crozat. 
 
 In the course of these negotiations, we find certain princi- 
 ples of international law laid down by the commissioners of 
 the United States as applicable to the question of disputed 
 boundaries. They seem to have been advanced after careful 
 consideration, for Messrs. Pinckney and Monroe formally 
 enunciated them on the 20th of April 1805, as " dictated by 
 reason, and adopted in practice by European Powers in the 
 discoveries and acquisitions which they have respectively 
 made in the new world;" and Mr. Adams, on the 12th of 
 March iy20, restated them again as principles " sanctioned 
 alike by immutable justice, and the general practice of the 
 European nations, which have formed settlements and held 
 possessions in this hemisphere." (British and Foreign State 
 Papers, 1817-19, pp. 327, 467.) 
 
 The first is, " That whenever any European nation takes 
 j)ossession of any extent of sea-coast, that possession is under- 
 stood as extending into the interior country, to the sources of 
 the rivers emptying within that coast, to all their branches, 
 and the country they cover, and to give it a right in exclusion 
 of all other nations to the same." 
 
 " It is evident," wiite Messrs. Pinckney and Monroe, (ibid., 
 p. 327,) " that some rule or principle must govern the rights 
 of European Powers in regard to each other in all such cases, 
 and it is certain that none can be adopted, in those to which 
 it applies, more reasonable or just than the present one. 
 Many weighty considerations shew the propriety of it. Na- 
 ture seems to have destined a range of territory so described 
 for the same society, to have connected its several parts to- 
 gether by the ties of a common interest, and to have detached 
 them from others. If this pri/;ciple is departed from, it must 
 be by attaching to such discovery and possession, a more en- 
 larged or contracted scope of acquisition ; but a shght atten- 
 tion to the subject will demonstrate the absurdity of either. 
 The latter would be to restrict the rights of a European 
 Power, who discovered and took possession of a new country, 
 to the spot on which its troops or settlements rested, a doc- 
 trine which has been totally disclaimed by all the Powers who 
 made discoveries and acquired possessions in America. The 
 other extreme would be equally im|)r o|)er ; that is, that the 
 nation who made such discovery should, in all cases, be en- 
 titled to the whole of the territory so discovered. In the 
 
EXTENT OF SETTLEMENT. 173 
 
 case of an island, whose extent was seen, which might be 
 soon sailed round, and preserved by a few forts, it may apply 
 with justice ; but in that of a continent it would be abso- 
 lutely absurd. Accordingly, we find, that this opposite ex- 
 treme has been equally disclaimed and disavowed by the 
 doctrine and practice of European nations. The great con- 
 tinent of America, north and south, was never claimed or 
 held by any one European nation, nor was either great 
 section of it. Their pretensions have been always bounded 
 by more moderate and rational principles. The one laid 
 down has obtained general assent. 
 
 " This principle was completely established in the contro- 
 versy which produced the war of 1755. Great Britain con- 
 tended that she had a right, founded on the discovery and 
 possession of such territory^ to define its boundaries by given 
 latitudes in grants to individuals, retaining the sovereignty to 
 herself from sea to sea. This pretension on her part was 
 opposed by France and Spain, and it was finally abandoned 
 by Great 13ritain in the treaty of 1768, which established the 
 Mississippi as the western boundary of her possessions. It 
 was opposed by France and Spain on the prijiciple here in- 
 sisted on, which of course gives it the highest possible sanction 
 in the present case.'^ 
 
 To a similar purport Vattel, b. i., § 266, writes : " When a 
 nation takes possession of a country, with a view to settle 
 there, it takes possession of every thing included in it, as 
 lands, lakes, rivers, dz;c." It is universally admitted, that 
 when a nation takes possession of a country, she is considered 
 to appropriate to herself all its natural appendages, such as 
 lakes, rivers, &c., and it is perfectly intelligible, why the 
 practice of European nations has sanctioned the exclusive 
 title of the first settlers on any extent of sea-coast to the in- 
 terior country within the limits of the coast which they have 
 occupied, because their settlements bar the approach to the 
 interior country, and other nations can have no right of way 
 across the settlements of independent nations. In reference, 
 however, to the extent of coast, which a nation may be pre- 
 sumed to have taken possession of by making a settlement in 
 a vacant country, the well-known rule of te7TCB dominium fini- 
 tur, ubifnitur armorum vis, might on the first thought suggest 
 itself; but it has not been hitherto held that there is any 
 analogy between jurisdiction over territory, and jurisdiction 
 over adjoining seas : on the contrary, it was ruled in the 
 
174 I^'CONSISTENT ARGUMENTS. 
 
 Circuit Court of New York, 1825, in the case of Jackson v. 
 Porter, 1 Paine, 467, " that under the second article of the 
 treaty with Great Britain, the precincts and jurisdiction of a 
 fort are not to be considered three miles in every direction, 
 by analogy to the jurisdiction of a country over that portion 
 of the sea surrounding its coasts, but they must be made out 
 by proof." The comity of nations, however, has recognised 
 in the case of settlements made in a vacant territory for the 
 purpose of colonisation, a title in the settlers to such an ex- 
 tent of territory as it may fairly be presumed that they intend 
 to cultivate (Vattel, b. i., § 81,) and the possession of which 
 is essential either to the convenience or security of the settle- 
 ment, without being inconvenient to other nations. The 
 limitation of this extent seems rather to have been regulated 
 by special conventions, than by any rule of uniform practice. 
 
 On the authority of this principle as above stated, Messrs. 
 Pinckney and Monroe contended, that " by the discovery and 
 possession of the Mississippi in its whole length, and the coast 
 adjoining it, the United States are entitled to the whole 
 country dependent on that river, the waters which empty into 
 it, and their several branches, wiihin the limits on that coast. 
 The extent to which this would go it is not in our power to 
 say ; but the principle being clear, dependent on plain and 
 simple facts, it would be easy to ascertain it." 
 
 It will have been observed, that the opposition of France 
 and Spain to the pretensions of Great Britain is adduced by 
 Messrs. Pinckney and Monroe, as giving the highest sanc- 
 tion to this principle. A passage in Mr. Calhoun's letter of 
 Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. 
 Having alluded to the claims of France and Great Britain, 
 first conflicting on the banks of the Ohio, he writes : '* If the 
 relative strength of these different claims may be tested by 
 the result of that remarkable contest, that of continuity west- 
 ward must be pronounced to be the stronger of the two. Eng- 
 land has had at least the advantage of the result, and would 
 seem to be foreclosed against contesting the principle — par- 
 ticularly as against us, who contributed so much to that re- 
 sult, and on whom that contest, and her example and her 
 pretensions from the first settlement of our country, have 
 contributed to impress it so deeply and indelibly." In other 
 respects Mr. Calhoun adopts the same view of the early 
 European settlements in North America, that the respective 
 nations "claimed for their settlements usually, specific limits 
 
CONTERMINOUS SETTLEMENTS. 175 
 
 alo?ig the coasts or bays on which they were formed, and gene- 
 rally a region of corresponding width extending across the 
 entire continent to the Pacific Ocean." 
 
 That the hypothesis of Mr. Calhoun's argument was meant 
 to be affirmed, may be inferred from Mr. Gallatin having 
 categorically asserted the same fact in 1826, as being notorious. 
 It does not however appear from the protracted negotiations 
 prior to the Treaty of Paris, that any conflicting principles 
 of international law were advanced by the two parties, or any 
 question of disputed title set at rest by the treaty. On the 
 contrary, it was intimated in the course of the negotiations, 
 by Great Britain, that she considered France to have the 
 natives on the left bank of the Mississippi under her protec- 
 tion, when she proposed that the King of France should 
 "consent to leave them under the protection of Great Bri- 
 tain." 
 
 The second rule is, *'that whenever a European nation 
 makes a discovery, and takes possession of any portion of 
 that continent, and another afterwards does the same at some 
 distance from it, where the boundary between them is not 
 determined by the principle above mentioned, the middle dis- 
 tance becomes such of course. The justice and propriety of 
 this rule are too obvious to require illustration." 
 
 The principle here stated seems very analogous to that 
 which is recognised by all writers on international law, as 
 regulating the navigation of rivers. Thus Vattel (i., § 266) — 
 " When a nation takes possession of a country bounded by a 
 river, she is considered as appropriating to herself the river 
 also ; for the utility of a river is too great to admit a sup- 
 position that the nation did not intend to reserve it for her- 
 self Consequently, the nation that first established her 
 dominion on one of the banks of the river, is considered as 
 being the first possessor of all that part of the river which 
 bounds her territory. Where there is a question of a very 
 broad river, this presumption admits not of a doubt, so far, at 
 least, as relates to a part of the river's breadth, and the 
 strength of the presumption increases or diminishes in the 
 inverse ratio with the breadth of the river ; for the narrower 
 the river is, the more does the safety and convenience of its 
 use require that it should be subject entirely to the empire and 
 property of that nation." To make the reasoning more com- 
 plete, it might have been added, " the broader the river is, the 
 stronger claim has each party to a portion of it, as requisite 
 
178 ACQUISITIONS FROM NATIVES. 
 
 for its own convenience, and not likely to be attended with 
 inconvenience to the other party." 
 
 Mr. Wheaton states the rule of division more explicitly 
 (part ii., ch. iv.) — " Where a navigable river forms the 
 boundary of conterminous states, the middle of the channel, 
 or ' thalweg,' is generally taken as the line of separation be- 
 tween the two states, the presumption of law being, that the 
 right of navigation is common to both : but this presumption 
 may be destroyed by actual proofs of prior occupancy, and 
 long undisturbed possession giving one of the riparian pro- 
 prietors the exclusive title to the entire river." 
 
 In an analogous manner, where a large tract of unoccupied 
 land forms the boundary of conterminous settlements, the 
 middle distance is suggested by natural equity as the line of 
 demarcation, where such line is not inconvenient to either 
 party, and when one party cannot establish a stronger pre- 
 sumption than the other of a perfect right in its own favour. 
 
 Thus, Messrs. Pinckney and Monroe contended, that " by 
 the application of this principle to the discovery made by M. 
 de la Salle of the bay of St. Bernard, and his establishment 
 there on the western side of the River Colorado, the United 
 States have a just right to a boundary founded on the middle 
 distance between that point and the then nearest Spanish 
 settlement ; which, it is understood, was in the province of 
 Panuco, unless that claim should be precluded on the principle 
 above mentioned. To what point that would carry us, it is 
 equally out of our power to say ; nor is it material, as the 
 possession in the bay of St. Bernard, taken in connection 
 with that on the Mississippi, has been always understood, as 
 of right we presume it ought, to extend to the Rio Bravo, on 
 which we now insist." 
 
 The third rule is, " that whenever any European nation 
 has thus acquired a right to any portion of territory on that 
 continent, that right can never be diminished or affected by 
 any other Power, by virtue of purchases made, by grants, or 
 conquests of the natives within the limits described." 
 
 " it is believed," continued the commissioners, " that this 
 principle has been admitted, and acted on invariably, since 
 the discovery of America, in respect to their possessions there, 
 by all the European Powers. It is particularly illustrated by 
 the stipulations of their most important treaties concerning 
 those possessions, and the practice under them, viz., the 
 Treaty of Utrecht in 1713, and that of Paris in 1763." 
 
RIGHT OF PRE-EMPTION. 177 
 
 The practice of European nations has certainly recognised 
 in the nation which has tirst occupied the territory of savage 
 tribes, that live by hunting, fishing, and roaming habits, the 
 sole right of acquiring the soil from the natives by purchase, 
 or cession, or conquest, for the purpose of establishing settle- 
 ments. The more humane spirit of the modern code of 
 nations seems disposed to reduce this right to a right of pre- 
 emption, as against other European nations. 
 
 The applicability of the above principles to the solution of 
 the questions at present under discussion between the 
 governments of the United States and Great Britain, will be 
 considered in a subsequent chapter. 
 
179 
 
 CHAPTER XIV. 
 
 NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED 
 STATES IN 1823-24. 
 
 Proceedings in Congress after the Convention of 1818. — Russian Ukase 
 of 1821,— Russian Title to the North-west Coast of America. — Declara- 
 tion of President Monroe, of Dec. 2, 1823. — Protest of Russia and 
 Great Britain.- -Report of General Jessup. — Exclusive Claim set up by 
 the United States, on the Ground of Discovery by Captain Gray, and 
 Settlement at Astoria.— Extent of Title by Discovery of the Mouth of a 
 River. — The United States claim up to 51° N. L. — British Objections. 
 — Convention of 1790. — Discovery by Captain Gray a private En- 
 terprise. — Mr. Rush's Reply. — -Gray's Vessel a national Ship for 
 such an Occasion. — Superior Title of Spain- — British Answer. — Pre. 
 tensions of Spain never admitted. — Drake's Expedition in 1578. — Mr. 
 Rush's further Reply. — Treaty of 1763, a Bar to Great Britain west- 
 ward of the Mississippi. — Exclusive Claim of the United States to the 
 entire Valley of the Columbia River.— Proposal of the British Com- 
 missioners of the Parallel of 49^ to the North-easternmost Branch of the 
 Columbia, and thence along the Mid-channel of the River to the Sea. — 
 Counter-proposal of the United States of the Parallel of 49° to the Sea. 
 — Negotiations broken off. 
 
 The Convention of 1818 had provided that the country west- 
 ward of the Stony Mountains should be free and open, for the 
 term of ten years from the signature of the treaty, to the 
 vessels, citizens, and subjects of the two Powers, without 
 prejudice to the territorial claims of either party. Two years 
 afterwards a committee was appointed by the House of 
 Representatives in Congress, for an " inquiry as to the situa- 
 tion of the settlements on the Pacific Ocean, and as to the 
 expediency of occupying the Columbia River ;" and a bill 
 was subsequently brought in *' for the occupation of the 
 Columbia, and the regulation of the trade with the Indians in 
 the territories of the United States." The bill, however, was 
 suffered to lie on the table of the House, and although it was 
 again brought before Congress in the ensuing year, no further 
 steps were taken until the winter of 1823. (Greenhow, p. 
 332.) 
 
 In the mean time the attention of both Powers was arrested 
 by the publication of a Russian ukase on 10th September 
 
DECLARATION OF PRESIDENT MONROE. 179 
 
 1S21, by which an exclusive title was asserted in favour of 
 Russian subjects to the north-west coast of America, as far 
 south as 51° north lat., and all foreign vessels were prohibited 
 from approaching within one hundred miles of the shore, under 
 penalty of confiscation. Great Britain lost no time in protest- 
 ing against this edict, and Mr. Adams, on the part of the 
 United States, declined to recognise its validity. A corres- 
 pondence ensued between Mr. Adams and M. de Poletica, the 
 Russian Minister at Washington, which may be referred to in 
 the British and Foreign State Papers for 1821-22. M. de 
 Poletica alleged, as authorising this edict on the part of the 
 Eraperorj first discovery, first occupancy, and, in the last 
 place, a peaceable and uncontested possession of more than 
 half a century. Both the other Powers, however, contested 
 the extent to which so perfect a title could be made out by 
 Russia, and separate negotiations were in consequence opened 
 between Russia and the other two Powers for the adjustment 
 of their conflicting claims. The question was additionally 
 embarrassed by a declaration on the part of President Monroe, 
 on December 2, 1823, that the " American continents, by the 
 free and independent condition which they had assumed, were 
 henceforth not to be considered as subjects for colonisation by 
 any European power." (Greenhow, p. 325.) Against this 
 declaration, both Russia and Great Britain formally protested. 
 A further ground of dissension between Great Britain and the 
 United States resulted from an official paper laid before the 
 House of Representatives in Congress, on February 16, 1824, 
 by General Jessup, the Quartermaster-General, in which it 
 was proposed to establish certain military posts between 
 Council Bluffs on the Missouri, and the Pacific, by which, he 
 adds, " present protection would be afforded to our traders ; 
 and at the expiration of the privilege granted to British sub- 
 jects to trade on the waters of the Columbia, we should be 
 enabled to remove them from our territory, and to secure the 
 whole trade to our citizens." In the conference which en- 
 sued at London on the following July, the British commission- 
 ers remarked that such observations " were calculated to put 
 Great Britain especially upon her guard, coming, as they did, 
 at a moment when a friendly negotiation was pending be- 
 tween the two Powers for the adjustment of their relative and 
 conflicting claims to the entire district of the country." 
 (Greenhow, p. 337.) 
 
 Such proceedings on the part of the Executive of the United 
 
180 CLAIMS OF THE UNITED STATES. 
 
 States were not calculated to facilitate the settlement of the 
 points likely to become subjects of controversy in the approach- 
 ing negotiations, eitiier at St. Petersburgh or at London. 
 The instructions which were to guide the commissioners of 
 the United States were set forth by Mr. Adams, in a letter to 
 Mr. Rush, the Minister Plenipotentiary at London, of the 
 date of July 22, 1823, which may be referred to in the British 
 and Foreign State Papers, 1825-26, p. 498. In the previous 
 negotiations of 1818, as already observed, Messrs. Gallatin 
 and Rush " did not assert a 'perfect righf^ to the country west- 
 ward of the Stony Mountains, but insisted that their claim 
 "Was •' at least good against Great BritainJ'^ The 49th degree 
 of north latitude had, in pursuance of the Treaty of Utrecht, 
 been fixed indefinitely as the line between the northern 
 British possessions and those of France, including Louisiana, 
 now a part of our territories. There was no reason why, if 
 the two countries extended their claims westward, the same 
 line should not be continued to the Pacific Ocean. So far as 
 discovery gave a claim, ours to the whole country on the 
 waters of the Columbia River was indisputable." Subsequent- 
 ly, however, to these negotiations. His Catholic Majesty had 
 ceded to the United States, by the Treaty of Washington, of 
 February 22, 1819, commonly called the Florida Treaty, " all 
 his rights, claims, and pretensions to any territory" north of 
 the 42d parallel of north latitude ; and Mr. Rush opened the 
 negotiations by stating, that *' the rights thus acquired from 
 Spain were regarded by the government of the United States 
 as surpassing the rights of all other European Powers on that 
 coast." Apart, however, from this right, " the United States 
 claimed in their own right, and as their absolute and exclusive 
 sovereignty and dominion, the whole of the country west of 
 the Rocky Mountains, from the 42d to at least as far up as the 
 61st degree of north latitude. This claim they rested upon 
 their first discovery of the river Columbia, followed up by an 
 effective settlement at its mouth : a settlement which was re- 
 duced by the arms of Britain during the late war, but formal- 
 ly surrendered up to the United States at the return of peace. 
 " Their right by first discovery they deemed peculiarly 
 strong, having been made, not only from the sea by Captain 
 Gray, but also from the interior by Lewis and Clarke, who 
 first discovered its sources, and explored its whole inland 
 course to the Pacific Ocean. It had been ascertained that 
 thp; Columbia extended, bv the River Multnomah, to as low 
 
COLOKIAL RIGHTS OF SPAIIT. 181 
 
 as 42 degrees north ; and by Clarke's River, to a point as 
 high up as 51 degrees, if not beyond that point ; and to this 
 entire range of country, contiguous to the original dominion 
 of the United States, and made a part of it by the almost in- 
 termingling waters of each, the United States considered their 
 title as established by all the principles that had ever been ap- 
 plied on this subject by the Powers of Europe to settlements 
 in the American hemisphere. I asserted," writes Mr. Rush, 
 *' that a nation discovering a country^ by entering the month of 
 its principal river at the sea coast, must necessarily be allowed 
 to claim and hold as great an extent of the interior country as 
 was described by the course of such principal river and its tribu- 
 tary streams ; and that the claim to this extent became doub- 
 ly strong, where, as in the present instance, the same river had 
 also been explored from its very mountain-springs to the sea. 
 " Such an union of titles, imparting a validity to each other, 
 did not often exist. I remarked, (hat it was scarcely to be 
 presumed that any European nation would henceforth project 
 any colonial establishment on any part of the north-west coast 
 of America, which as yet had never been used to any other 
 useful purpose than that of trading with the aboriginal inhabi- 
 tants, or fishing in the neighbouring seas ; but that the United 
 States should contemplate, and at one day form, permanent 
 establishments there, was naturally to be expected, as proxi- 
 mate to their own possessions, and falling under their imme- 
 diate jurisdiction. Speaking of the Powers of Europe, who 
 had ever advanced claims to any part of this coast, I referred 
 to the principles that had been settled by the Nootka Sound 
 Convention of 1790, and remarked, that Spain had now lost 
 all the exclusive colonial rights that were recognised under that 
 convention, first, by the fact of the independence of the South 
 American States and of Mexico, and next, by her express re- 
 nunciation of all her rights, of whatever kind, above the 42 de- 
 gree of north latitude, to the United States. Those new 
 States would themselves now possess the rights incident to 
 their condition of political independence, and the claims of the 
 United States above the 42 parallel, as high up as 60°, claims 
 as well in their own right as by their succession to the title of 
 Spain, would henceforth necessarily preclude other nations 
 from forming colonial establishments upon any part of the 
 American continents. I was, therefore, instructed to say, 
 that my government no longer considered any part of those 
 continents as open to future colonisation by any of the Powers 
 
 9 
 
182 PROPOSAL OF THE L'NITKD STATES, 
 
 of Europe, and that this was a principle upon which [ should 
 insist in the course of these negotiations." 
 
 The proposal which Mr. Rush was authorised to make on 
 the part of the United States was, that for the future no settle- 
 ments should he made by citizens of the United States north 
 of 51°, or by British subjects south of 51°, inasmuch as the 
 Columbia River branched as far north as 51®. Mr. x\dams, 
 however, in his instructions, concludes with these words : — 
 *'As, however, the line already runs in latitude 49° to the Stony 
 Mountains.should it be earnestly insisted upon by Great Britain, 
 we will consent to carry it in continuance on the same parallel 
 to the sea." 
 
 On the other hand the British plenipotentiaries, on their 
 part, totally declined the proposal, and totally denied the prin- 
 ciples under which it had been introduced. "They said that 
 Great Britain considered the whole of the unoccupied parts of 
 America as being open to her future settlements, in like man- 
 ner as heretofore. They included within these parts, as well 
 that portion of the north-west coast lying between the 42d and 
 61st degree of latitude, as any other parts. The principle of 
 colonisation on that coast, or elsewhere, on any portion of those 
 continents not yet occupied, Great Britain was not prepared 
 to relinquish. Neither was she prepared to accede to the ex- 
 clusive claim of the United States. She had not, by her con- 
 vention with Spain of 1790, or at any other period, conceded 
 to that Power any exclusive rights on that coast, where ac- 
 tual settlements had not been formed. She considered the 
 same principles to be applicable to it now as then. She could 
 not concede to the United States, who held the Spanish title, 
 claims which she had felt herself obliged to resist when ad- 
 vanced by Spain, and on her resistance to which the credit of 
 Great Britain had been thought to depend. 
 
 " Nor could Great Britain at all admit, the plenipotentiaries 
 said, the claim of the United States, as founded on their own 
 first discovery. It had been objectionable with her in the ne- 
 gotiation of 1818, and had not been admitted since. Her 
 surrender to the United States of the post at Columbia River 
 after the late war, was in fulfilment of the provisions of the 
 first article of the Treaty of Ghent, without affecting ques- 
 tions of right on either side. Britam did not admit the validi- 
 ty of the discovery by Captain Gray. He had only been on 
 an enterprise of his own, as an individual, and the British 
 government was yet to be informed under what principles or 
 
183 
 
 usage, among the nations of Europe, his having first entered 
 or discovered the mouth of the River Columbia, admitting this 
 to have been the fact, was to carry after it such a portion of 
 the interior country as was alleged. Great Britain entered 
 her dissent to such a claim ; and least of all did she admit that 
 the circumstance of a merchant vessel of the United Slates 
 having penetrated the coast of that continent at Columbia 
 River, was to be taken to extend a claim in favour of the 
 United States along the same coast, both above and below that 
 river, over latitudes that had been previously discovered and 
 explored by Great Britain herself, in expeditions fitted out 
 under the authority and with the resources of the nation. 
 This had been done by Captain Cook, to speak of no others, 
 whose voyage was at least prior to that of Captain Gray. On 
 the coast only a few degrees south of the Columbia, Britain 
 had made purchases of territory from the natives before the 
 United States were an independent power ; and upon that river 
 itself or upon rivers that flowed into it, west of the Rocky 
 Mountains, her subjects had formed settlements coeval with, if 
 not prior to, the settlement by American citizens at its mouth." 
 
 Such was the tenor of the opening of the negotiations. 
 Mr. Rush, in resuming the subject, stated that it " was un- 
 known to his government that Great Britain had ever even 
 advanced any claim to territory on the north-west coast of 
 America, by the right of occupation, before the Nootka Sound 
 controversy. It was clear, that by the Treaty of Paris, of. 
 1763, her territorial claims to America were bounded westward 
 by the Mississippi. The claim of the United States, under the 
 discovery by Captain Gray, was therefore, at all events, suffi- 
 cient to over- reach, in point of time, any that Great Britain 
 could allege along that coast, on the ground of prior occupa- 
 tion or settlement. As to any alleged settlements by her sub- 
 jects on the Columbia, or on rivers falling into it, earlier, or 
 as early, as the one formed by American citizens at Astoria, 
 I knew not of them, and was not prepared to admit the fact. 
 As to the discovery itself of Capt. Gray, it was not for a mo- 
 inent to be drawn into question. It was a fact before the 
 whole world. The very geographers of Great Britain had 
 adopted the name which he had given to this river." 
 
 Having alluded to the fact of Vancouver having found 
 Captain Gray there, Mr. Rush proceeded to meet the objec- 
 tion that the discovery of the Columbia River was not made 
 by a national ship, or under national authority. " The United 
 
194 DISCOVERY BY CAPTAIN GRAY. 
 
 States," he said, " could admit of no such distinction ; could 
 never surrender, under it or upon any ground, their claim to 
 this discovery. The ship of Captain Gray, whether fitted out 
 by the government of the United States, or not, was B.nafional 
 shij). If she was not so in a technical sense of the word, she 
 was in the full sense of it, ajypUcable to such an occasion. She 
 bore at her stern the flag of the nation, sailed forth under the 
 protection of the nation, and was to be identified with the 
 rights of the nation.'' 
 
 "The extent of this interior country attaching to this dis- 
 covery was founded,*' Mr. Rush contended, " upon a principle 
 at once reasonable and moderate : reasonable, because, as 
 discovery was not to be limited to the local spot of a first 
 landing-place, there must be a rule both for enlarging and 
 circumscribing its range ; and none more proper than that of 
 taking the water-courses which nature has laid down, both as 
 the fair limits of the country, and as indispensable to its use 
 and value ; moderate, because the nations of Europe had 
 often, under their rights of discovery, carried their claims 
 much farther. Here I instanced, as sufficient for my purpose, 
 and pertinent to it, the terms in which many of the royal 
 charters and letters patent had been granted, by the Crown 
 of England, to individuals proceeding to the discovery or set' 
 tlement of new countries on the American continent. Amongst 
 others, those from Elizabeth in 1578, to Sir Humphery Gil- 
 bert, and in 1584, to Sir Walter Raleigh : those from James 
 I. to Sir Thomas Yates, in 1606 and 1607, and the Georgia 
 charter of 1732. By the words of the last, a grant is passed 
 to all territories along the sea-coast, from the River Savannah 
 to the most southern stream ' of another great river, called 
 the Alatamaha, and westward from the heads of the said 
 rivers in a direct line to the South Seas.' To show that 
 Britain was not the only European nation, who, in her terri- 
 torial claims on this continent, had had an eye to the rule of 
 assuming water-courses to be the fittest boundaries, I also 
 cited the charter of Louis XIV. to Crozat, by which 'all the 
 country drained by the waters emptying directly or indirectly 
 into the Mississippi,' is declared to be comprehended under 
 the name, and within the limits of Louisiana." 
 
 In respect to the title derived by the United States from 
 Spain, Mr. Rush contended that, ''if Great Britain had put 
 forth no claims on the north-west coast, founded on prior 
 occupation^ still less could she ever have established any, at 
 
CLAIM OP THE UNITED STATES. 185 
 
 any period, founded on prior discovery. The superior title of 
 Spain on this ground, as well as others, was indeed capable 
 of demonstration." Russia had acknowledged it in 1790, as the 
 State Papers of the Nootka Sound controversy would show. 
 The memorial of the Spanish Court to the British minister 
 on that occasion expressly asserted, that notwithstanding all 
 the attempted encroachments upon the Spanish coasts of the 
 Pacific Ocean, Spain had preserved her possessions there en- 
 tire, — possessions which she had constantly, and before all 
 Europe, on that and other occasions, declared to extend to as 
 high at least as the 60th degree of north latitude. The very 
 first article of the Nootka Sound Convention attested, I 
 said, the superiority of her title ; for whilst by it the nations 
 of Europe generally were allowed to make settlements on 
 that coast, it was only for the purposes of trade with the na- 
 tives, thereby excluding the right of any exclusive or colonial 
 establishments for other purposes. As to any claim on the 
 part of Britain under the voyage of Captain Cook, I re- 
 marked that this was sufficiently superseded (passing by every 
 thing else) by the Journal of the Spanish expedition from 
 San Bias in 1775, kept by Don Antonio Maurelle, for an ac- 
 count of which I referred the British plenipotentiaries to the 
 work of Daines Barrington, a British author. In that expe- 
 dition, consisting of a frigate and a schooner, fitted out by 
 the Viceroy of Mexico, the north-west coast was visited in 
 latitude 45, 47, 49, 53, 55, 56, 57, and 58 degrees, not one of 
 which points there was good reason for believing had ever 
 been explored, or as much as seen, up to that day, by any 
 navigator of Great Britain. There was, too, I said, the 
 voyage of Juan Perez, prior to 1775 ; that of Aguilar, in 
 1601, who explored that coast in latitude 45°; that of De Fuca 
 in 1592, who explored it in latitude 48°, giving the name, 
 which they still bore, to the straits in that latitude, without 
 going through a much longer list of other early Spanish 
 navigators in that sea, whose discoveries were confessedly of 
 a nature to put out of view those of all other nations. I 
 finished by saying, that in the opinion of my government, 
 the title to the United States to the whole of that coast, 
 from latitude 42° to as far north as latitude 60°, was there- 
 fore superior to that of Great Britain or any other Power ; 
 first, through the proper claim of the United States by dis- 
 covery and settlement, and secondly, as now standing in the 
 place of Spain, and holding in their hands all her title." 
 
186 BKITISIl REPLY. 
 
 The British plenipotentiaries, in their reply, " repeated 
 their animated denials of the title of the United States, as 
 alleged to have been acquired by themselves, enlarging and 
 insisting upon their objections to it, as already stated. Nor 
 were they less decided in their renewed impeachments of 
 the title of Spain. They said that it was well known to 
 them what had formerly been the pretensions of Spain to 
 absolute sovereignty and dominion in the South Seas, and 
 over all the shores of America which they washed : but that 
 these were pretensions which Britain had never admitted : 
 on the contrary, had strenuously resisted them. They re- 
 ferred to the note of the British minister to the Court of 
 Spain, of May 16, 1790, in which Britain had not only as- 
 serted a full right to an uninterrupted commerce and naviga- 
 tion in the Pacific, but also that of forming, with the cojisent 
 of the natives, whatever establishments she thought proper 
 on the north-west coast, in parts not already occupied by 
 other nations. This had been the doctrine of Great Britain, 
 and from it, nothing that was due in her estimation to other 
 Powers, now called upon her in any degree to depart. 
 
 " As to the alleged prior discoveries of Spain all along that 
 coast, Britain did not admit them but with great qualification. 
 She could never admit that the mere fact of Spanish naviga- 
 tors having first seen the coast at particular points, even 
 where this was capable of being substantiated as the fact, 
 without any subsequent or efficient acts of sovereignty or 
 settlement on the part of Spain, was sufficient to exclude all 
 other nations from that portion of the globe. Besides, they 
 said, even on the score of prior discovery on that coast, at 
 least as far up as 48*^ north latitude, Britain herself had a 
 claim over all other nations. " Here they referred to Drake's 
 expedition in 1578, who, as they said, explored that coast on 
 the part of England, from 37° to 48° N., making formal 
 claim to these limits in the name of Elizabeth, and giving 
 the name of New Albion to all the country which they com- 
 prehended. Was this, they asked, to be reputed nothing in 
 the comparison of prior discoveries, and did it not even take 
 in a large part of the very coast now claimed by the United 
 States, as of prior discovery on their side ? " 
 
 Mr. Rush in reply contended, *' as to Drake, although 
 Fleurieu, in his introduction to Marchand, did assert that he 
 got as far north as 48°, yet Hakluyt, who wrote about the 
 time that Drake flourished, informs us that he got no higher 
 
VALLEY OF THE COLUMBIA. 187 
 
 than 43'=, having put back at that point from extremity of 
 cold. All the later authors or compilers, also, who spoke of 
 his vo3^age, however they might differ as to the degree of 
 latitude to which he went, adopted from Hakluyt this fact, of 
 his having turned back from intensity of weather. The pre- 
 ponderance of probability, therefore, I alleged, as well as of 
 authority was, that Drake did not get beyond 43° along that 
 coast. At all events, it was certain that he had made no 
 settlements there, and the absence of these would, under the 
 doctrine of great Britain, as applied by her to Spain, prevent 
 any title whatever attaching to his supposed discoveries. 
 They were moreover put out of view by the treaty of 1763, 
 by which Great Britain agreed to consider the Mississippi as 
 the western boundary upon that continent. 
 
 He concluded with re-asserting formally, " the full and ex- 
 clusive sovereignty o^ the United States over the whole of 
 the territory beyond the Rocky Mountains washed by the 
 Columbia River, in manner and extent as stated, subject, of 
 course, to whatever existing conventional arrangements they 
 may have formed in regard to it with other Powers. Their 
 title to this whole country they considered as not to be shaken, 
 it had often been proclaimed in the legislative discussions of 
 the nation, and was afterwards public before the world. Its 
 broad and stable foundations were laid in the first uncontra- 
 dicted discovery of that river, both at its mouth and its 
 isource, followed up by an effective settlement, and that settle- 
 ment the earliest ever made upon its banks. If a title in the 
 United States, thus transcendant, needed confirmation, it 
 might be sought in their now uniting to it the title of Spain, 
 it was not the intention of the United States, I remarked, to 
 repose upon any of the extreme pretensions of that Power to 
 speculative dominion in those seas, which grew up in less en- 
 lightened ages, however countenanced in those ages ; nor had 
 I, as their plenipotentiary, sought any aid from such preten- 
 sions ; but to the extent of the just claims of Spain, ground- 
 ed upon her fair enterprise and resources, at periods when her 
 renown for both filled all Europe, the United States had suc- 
 ceeded, and upon claims of this character it had, therefore, 
 become as well their right as their duty to insist.'' 
 
 The British plenipotentiaries, in conclusion, with a view 
 as they said of laying a foundation of harmony between the 
 two governments, proposed that the third article of the Con- 
 vention of 1818 should now terminate. That " the boun- 
 
168 COUIfTEK-PROPOSAL OF THE UNITED STATES. 
 
 dary line between the territories respectively claimed by the 
 two Powers, westward of the Rocky Mountains, should be 
 drawn due west, along the 49th parallel of latitude, to the 
 point where it strikes the north-easternmost branch of the 
 Columbia, and thence down along the middle of the Colum- 
 bia to the Pacific Ocean : the navigation of this river to be 
 for ever free to the subjects or citizens of both nations." 
 The}' remarked, " that in submitting it, they considered Great 
 Britain as departing largely from the full extent of her right, 
 and that, if accepted by the United States, it would impose 
 upon her the necessity of breaking up four or five settlements, 
 formed by her subjects within the limits that would become 
 prohibited, and that they had formed, under the belief of their 
 full rights as British subjects to settle there. But their gov- 
 ernment was willing, they sard, to make these surrenders, for 
 so they considered them, in a spirit of compromise, on points 
 where the two nations stood so divided." 
 
 Mr. Rush, in reply, declared his utter inability to accept 
 such a proposal, and in return consented, " in compliance 
 with this spirit, and in order to meet Great Britain on ground 
 that might be deemed middle, to vary so far the terms of his 
 own proposal, as to shift the southern line as low as 49° in 
 place of 51°." "I desired it," he writes, "to be understood, 
 that this was the extreme limit to which I was authorised to 
 go ; and that, in being willing to make this change, I, too, 
 considered the United States as abating their rights, in the 
 hope of being able to put an end to all conflict of claims 
 between the two nations to the coast and country in dispute.'^ 
 
 The British commissioners declined acceding to this pro- 
 posal, and as neither party was disposed to make any modifi- 
 cation in their ultimatum, the negotiation was brought to 3i 
 close. 
 
189 
 
 CHAPTER XV. 
 
 EXAMINATION OF THE CLAI3IS OF THE UNITED STATES. 
 
 Exclusive Sovereignty for the first Time claimed by the United States 
 over the Valley of the Columbia. — The Statements relied upon to sup- 
 port this, not correct. — The Multnomah River erroneously laid down 
 in Maps. — Willamette Settlement — Source of the Multnomah, or Wil. 
 lamette, in about 43° 45' N. L. — Clarke's River. — Source in 46° 
 30'.— The Northernmost Branch of the Columbia discovered and explor- 
 ed by Mr. Thomson. — The Pacific Fur Company not authorised by the 
 United States Government. — The American Fur Company, chartered 
 by the State of New York in 1809, a different Company for a different 
 Purpose. — The Association dissolved at Astoria before the Arrival of H. 
 B. M.'s Sloop of War the Racoon. — Protection of the National Flag. — 
 Vattel. — Kluber — Letter from Mr. Gallatin to Mr. Astor. — A Commis- 
 sion from the State required in respect of acquiring Territory. — Title by 
 Discovery of the Mouth of a River. — Rivers Appendages to a Territory. 
 — Vattel. — Common Use of great Rivers. — Mr. Wheaton. — Effect of 
 the Principle to make the Highlands, not the Water Courses, the Bonn- 
 daries. — Different Principle advanced by Messrs. Pickney & Monroe, in 
 1805, founded on Extent of Sea Coast. — Vattel. — Charters of Georgia, 
 Pennsylvania, and Carolina. — Crozat's Grant opposed to the Spanish 
 Discovery of the Mississippi. — Inconvenience in applying the Principle. 
 — Conflict of Titles. — Course of the Columbia River. — Valley of the 
 Columbia River does not extend across the Cascade Range, on the North 
 Side of the River. — Derivative Title of the United States from Spam. — 
 Spanish Version, in 1790, of Encroachments by Russia. — The Russian 
 Statement. — The Russian American Company, in 1799 — LordStowell. 
 — Discoveries require Notification. — The Convention of the Escurial 
 admitted to contain Recognitions of Rights. — Meaning of the Word 
 " Settlements." 
 
 It will have been seen in the previous chapter that Messrs. 
 Rush and Gallatin, in the negotiations of 1823-24, no longer 
 confined themselves to the assertion of an imperfect right 
 on the part of the United States, good at least against Great 
 Britain, as in the negotiations of 1818, but set up a claim on 
 the part of the United States, intheir own right, to absolute and 
 exclusive sovereignty and dominion over the whole of the 
 country westward of the Rocky Mountains, from 42° to at 
 least as high up as 51°. This claim they rested upon their 
 first discovery of the River Columbia, followed up by an 
 effective settlement at its mouth. 
 
 In respect to the discovery of the river, they alleged the 
 9* 
 
190 SOURCE OF THE MULTNOMAH RIVER. 
 
 same facts as in 1818, namely, that Captain Gray, in the 
 American ship Columbia, first discovered and entered its 
 mouth, and that Captains Lewis and Clarke first explored it 
 from its sources to the ocean. In respect to settlement, the 
 establishment at Astoria was, as before, relied upon, having 
 been formally surrendered up to the United States at the re- 
 turn of peace. 
 
 The American plenipotentiaries grounded the extent of the 
 exclusive claim of the United States, in their own right, upon 
 the fact that " it had been ascertained that the Columbia ex- 
 tended by the River Multnomah to as low as 42° north, and 
 by Clarke's River to a point as high up as 51°, if not beyond 
 that point." In the first place, then, neither of these state- 
 ments is correct. The erroneous notions respecting the 
 Multnomah River have been already alluded to in the chapter 
 upon the Treaty of Washington. To a similar purport, in 
 the map prefixed to Lewis and Clarke's Travels, we find the 
 source of the Multnomah laid down in 38° 45' north latitude, 
 115° 45' west longitude from Greenwich, the river being re- 
 presented to run a due north-west course, and to empty itself 
 into the Columbia within about 140 miles of the sea. In 
 the narrative of the expedition, Chapter XX., it is expressly 
 stated, that they passed the mouth of this river in their way 
 down the Columbia to the Pacific, and afterwards found it to 
 be the Multnomah ; and in Chapter XXV. it is said that " the 
 Indians call it Multnomah from a nation of the same name, 
 residing near it, on Wappatoo Island." This Island lies in 
 the immediate mouth of the river, dividing the channel into 
 two parts. Now this river is the modern Willamette, which 
 enters the Columbia from the south, about five miles below 
 Fort Vancouver, about eighty-five miles from the sea, accord- 
 ing to Mr. Dunn, and in the valley of this river, in a very fer- 
 tile district, about fifty miles from its entrance into the Colum- 
 bia, is the Willamette Settlement, where the majority of the 
 colonists from the United States are located, though accord- 
 ing to Commander Wilkes' account, (vol. iv., chap, x., p. 349, 
 8vo. ed.,) many of the farms belong to Canadians who have 
 been in the service of the Hudson's Bay Company. Actual 
 survey, as may be seen from Commander Wilkes' map, has 
 determined that the southernmost source of the Multnomah, 
 or Willamette, is in about 43° 45' N. L. 
 
 In respect to Clarke's River, the map of Lewis and Clarke 
 places the highest source of it in about 45° 30', whilst Cora- 
 
PACmC FUR COMPANY* 191 
 
 mander Wilkes' map determines it to be in about 46° 30'. It 
 is the sam.e as the Flathead River, and it joins the main stream 
 of the Columbia a little below the 49th parallel. It thus ap- 
 pears that neither of the rivers upon which Mr, Rush relied, 
 supports his claim to the extent which he maintained. Had 
 he grounded the title of the United States towards the south 
 upon the source of the Lewis or Snake River, which he may 
 possibly have intended to do, this would have given him the 
 42d parallel to commence with, and Clarke's River would 
 have carried the claim of the United States up to very nearly 
 49° at its junction with the northern branch, but no higher. 
 Lewis and Clarke saw nothing, and knew nothing, of the 
 northernmost branch of the Columbia, which Mr. Thomson, 
 the astronomer of the North-west Company, first explored to 
 its junction with Clarke's River, and thence to the sea, in 
 1811, as already (p. 21) detailed. 
 
 In reference to the settlement of Astoria, on the southern 
 bank of the Columbia, at its mouth, the Pacific Fur Company 
 does not appear to have been authorised by the United States 
 Government to make any effective settlement there. On the 
 contrary, it is asserted by writers in the United States, who, 
 it may be presumed, are well informed on the subject, and 
 the Charleston Mercury of October 11, 1845, expressly as- 
 serts the fact, — " that the United States Government, though 
 earnestly soHcited by Mr. Astor, refused to authorise or sanc- 
 tion his expedition." Mr. Astor himself states, in his letter 
 of January 4, 1823, to Mr. Adams, quoted by Mr. Greenhow 
 in his Appendix, p. 441, that it was as late as February 1813, 
 when he made an application to the Secretary of State at 
 Washington, but no reply was given to it. In addition, al- 
 though Mr. Astor, according to Mr. Washington Irving, ob- 
 tained a charter from the State of New York in 1809, incor- 
 porating a company under the name of the American Fur 
 Company, this was intended to carry on the fur trade in the 
 Atlantic States, and was a totally distinct speculation from 
 the Pacific Fur Company, which was not formed before July 
 1810, and was a purely voluntary association for commercial 
 purposes, consisting of ten partners, of whom Mr. Astor was 
 the chief. Of these, however, six were British subjects, who, 
 according to Mr. Greenhow, p. 294, communicated the plan 
 of the enterprise to tlie British minister at Washington, and 
 were assured by him, " that in case of a war between the 
 two nations they would be respected as British subjects and 
 
192 ASSOCIATION AT ASTORIA DISSOLVED. 
 
 merchants.''^ Such a body of traders could hardly be consid- 
 ered to invest their settlement at Astoria with any distinct 
 national character, much less to represent the sovereignty of 
 the United States of America, so as, in taking possession of 
 a portion of territory at the mouth of the Columbia, to ac- 
 quire for the United States the empire or sovereignty of it, at 
 the same time with the domain. 
 
 It must be kept in mind that the Pacific Fur Company was 
 a purely voluntary association, a mercantile firm in fact, not 
 incorporated, as the American Fur Company had been, by an 
 Act of the Legislature of the State of New York, nor, though 
 countenanced by the Government of the United States, as it 
 well deserved to be, in any respect authorised by it. " The 
 association," according to Mr. Washington Irving, " if suc- 
 cessful, was to continue for twenty years, but the parties had 
 fidl power to abandon and dissolve it within the first five years, 
 should it be found unprofitable." And thus, we find, that the 
 association was dissolved by the unanimous act of the part- 
 ners present at Astoria on the 1st of July 1813, and the es- 
 tablishment itself, with the furs and stock in hand, transfer- 
 red by sale on the 6th of October to the North-west Company, 
 so that when the British sloop-of-war the Racoon arrived on 
 the 1st of December, the settlement at Astoria was the pro- 
 perty of the North-west Company. Captain Black, formally 
 took possession of Astoria in the name of his Britannic Ma- 
 jesty, according to the narrative of Mr. John Ross Cox, and 
 having hoisted the British ensign, named it Fort George. 
 There is no mention however of the flag of the United States 
 having been struck on this occasion. Thus, indeed, the ter- 
 ritory was for the first time taken possession of by a person 
 ^^ furnished with a commission from his sovereign,'''' and from 
 this time Astoria became a settlement of the British Crown, 
 not by the rights of war, but by a national act of taking pos- 
 session. At a subsequent period, however, upon the represen- 
 tation of the Government of the United States, the British 
 Government, in conformity, as it was led to suppose, to the 
 first article of the Treaty of Ghent, directed the settlement 
 of Fort George to be restored to the United States. The 
 British ensign was then formally struck, and the flag of the 
 United States hoisted. By this act of cession on the part of 
 the Crown of Great Britain, and the subsequent taking pos- 
 session of the place by Mr. Provost, as agent for the United 
 States, Astoria for the first time acquired the national charac- 
 
THE STATE MUST TAKE POSSESSION. 193 
 
 ter of a settlement of the United States ; and though the 
 facts of the case, when better understood, might not have 
 brought Astoria within the scope of the first article of the 
 Treaty of Ghent, still the act of cession, having been a vol- 
 untary act on the part of the British Government, would 
 carry with it analogous consequences to those which followed 
 the restoration of the settlement at Nootka Sound, on the part 
 of Spain, to Great Britain, by virtue of the first article of the 
 Treaty of the Escurial. From this period, then, the first au- 
 thoritative occupation of any portion of the Oregon territory 
 by the United States is to be dated. 
 
 But it was alleged on the part of the United States, that the 
 mouth of the Columbia river had been first discovered and 
 entered by Captain Gray, a citizen of the United States, in a 
 vessel sailing under the flag of the United States : and when 
 it was urged by the British commissioners that the discovery 
 was not made by a national ship, or under national authority, 
 it was stated by Mr. Rush, that " the United States could ad- 
 mit no such distinction, could never surrender under it, or 
 upon any ground, their claim to this discovery. The ship of 
 Captain Gray, whether fitted out by the government of the 
 United States or not, was a national ship. If she was not so 
 in a technical sense of the word, she was in the full sense of it 
 applicable to such an occasion. She bore at her stern the flag 
 of the nation, sailed forth under the protection of the nation, 
 and was to be identified with the rights of the nation." 
 
 The doctrine adduced in the above passage is not in accord- 
 ance either with the practice of nations, or the principles of 
 natural law. The occasion here contemplated was the dis- 
 covery of a country with a view of taking possession of it. 
 The practice of nations, according to Vattel, has usually res- 
 pected such a discovery, when made by navigators furnished 
 with a commission from their sovereign^ but not otherwise ; 
 and according to Kluber, in order that an act of occupation 
 should be legitimate, — and the same observation applies to all 
 the acts which are accessorial to occupation, — the state ought 
 to have the intention of taking possession. It may be per- 
 fectly true that a merchant vessel, sailing under the flag of a 
 nation, is under the protection of the nation, and is to be iden- 
 tified with the rights of the nation, within the limits of its own 
 proper character, that is, for all the purposes of commerce, 
 but not beyond those limits : the flag, indeed, entitles it to 
 all the privileges which the nation has secured to her citizens 
 
194 
 
 by treaties of commerce, but the ship is the property of indi- 
 viduals, and the captain is only the agent of the owners : he 
 possesses no authority from the nation, unlike the captain of a 
 vessel of the state, who is the agent of the state, and for whose 
 acts the state is responsible towards other states. The Gov- 
 ernment of the United States, however, did not consider, about 
 the time of these transactions at Astoria, that a trading ves- 
 sel, sailing under the command of a private citizen, could 
 claim the protection of the flag in the same sense in which 
 a ship of the state possesses it, under the command of a com- 
 missioned officer. Mr. Washington Irving has annexed, in 
 the Appendix to his " Astoria," a letter from Mr. Gallatin 
 himself, addressed to Mr. Astor, in August 6, 1835 : — " Dur- 
 ing that period I visited Washington twice — in October or 
 November 1815, and in March 1816. On one of these two 
 occasions, and I believe on the last, you mentioned to me that 
 you were disposed once more to renew the attempt and to re- 
 establish Astoria, provided you had the protection of the Ameri- 
 can flag : for which purpose a lieutenant's command would 
 be sufficient to you. You requested me to mention this to 
 the President, which I did. Mr. Madison said he would con- 
 sider the subject ; and, although he did not commit himself, 
 I thought that he received the proposal favourably." This 
 distinction, which the highest authorities in the United States 
 seem at that time to have fully appreciated, between the pro- 
 tection of the national flag in respect of acquiring territory, 
 and the protection of it in respect of carrying on commerce, 
 namely, that a commission from the state is required to convey 
 the former, whilst the latter is enjoyed at his own will by every 
 citizen, is seemingly at variance with Mr. Rush's remarks. 
 
 The principle, however, upon which Captain Gray's dis- 
 covery, on the hypothesis that it was a national discovery, 
 v/as alleged to lead to such important consequences, was 
 thus stated : — "I asserted," writes Mr. Rush, *'that a na- 
 tion discovering a country by entering the mouth of its 
 principal river at the sea coast, must necessarily be allowed 
 to claim and hold as great an extent of the interior country 
 as was described by the course of such principal river and its 
 tributary streams." This is a very sweeping declaration, 
 more particularly when applied to the rivers of the New 
 World ; and, in order that it should command the acquies- 
 cence of other states, it must be agreeable either to the prin- 
 ciples of natural law, or to the practice of nations. 
 
COMMON USE OF RIVERS. 195 
 
 The principles involved in this position seem to be, that the 
 discoverer of the mouth of a river is entitled to the exclusive 
 use of the river ; and the exclusive use of the river entitles 
 him to the property of its banks. This is an inversion of the 
 ordinary principles of natural law, which regards rivers and 
 lakes as appendages to a territory, the use of which is neces- 
 sary for the perfect enjoyment of the territory, and rights of 
 property in them only as acquired through rights of property 
 in the banks. Thus, Vattel (i., § 266 :) " When a nation 
 takes possession of a country bounded by a river, she is con- 
 sidered as appropriating to herself the river also : for the utility 
 of a river is too great to admit of a supposition that the nation 
 did not intend to reserve it for itself. Consequently, the na- 
 tion that first established her dominion on one of the banks of 
 the river is considered as being the first possessor of all that 
 part of the river which bounds her territory. Where it is a 
 question of a very broad river, this presumption admits not of 
 a doubt, so far at least as relates to a part of the river's 
 breadth : and the strength of the presumption increases or 
 diminishes in an inverse ratio with the breadth of a river ; for 
 the narrower the river is, the more do the safety and conven- 
 ience of its use require that it should be subject to the empire 
 and property of a nation." 
 
 According to the Civil Law, rivers (flumina perennia,) as 
 distinguished from streams (rivi,) were deemed public, which, 
 like the sea shore, all might use. In an analogous manner, 
 in reference to great rivers flowing into the ocean, a common 
 use is presumed, unless an exclusive title can be made out, 
 either from prescription or the acknowledgment of other 
 states. Thus, Mr. Wheaton, in his Elements of International 
 Law, (part ii., ch. iv., § 18,) in referring to the Treaty of San 
 Lorenzo el Real, in 1795, by the 4th article of which his Ca- 
 tholic Majesty agreed that the navigation of the Mississippi, 
 from its sources to the ocean, should be free to the citizens of 
 the United States, (Martens, Traites, vi., p. 142,) Spain hav- 
 ing become at this time possessed of both banks of the Mis- 
 sissippi at its mouth, observes : — " The right of the United 
 States to participate with Spain in the navigation of the Mis- 
 sissippi was rested by the American Government on the senti- 
 ment, written in deep characters on the heart of man, that 
 the ocean is free to all men, and its rivers to all their inhabit- 
 ants." Thus, indeed, the use of a river is considered by Mr. 
 
196 EXTENT OF SEA COAST. 
 
 Wheaton to be accessory to inhabitancy ; in other words, to 
 follow the property in the banks. 
 
 The principle, however, upon which the commissioner of 
 the United States defended his claim to attach such an extent 
 of country to the discovery of Captain Gray, was, that it was 
 at once reasonable and moderate : reasonable, because there 
 must be some rule for determining the local extent of a dis- 
 covery, and none was more proper than taking the water- 
 courses which nature had laid down, both as the fair limits of 
 the country, and as indispensable to its use and value ; mod- 
 erate, because the natives of Europe had often, under their 
 rights of discovery, carried their claims much further. As to 
 the reasonableness of the rule, if Mr. Rush meant that rivers 
 were the natural and most convenient boundaries of territo- 
 ries, this proposition would command a ready assent: but the 
 result of the principle which he set up as to the extent of the 
 discovery, would be to make the high-lands, and not the 
 water-courses, the territorial limits. In respect, however, to 
 the moderation of the principle, when the magnitude of the 
 great rivers of America, the Amazons for example, or the 
 Mississippi, is taken into consideration, the absolute modera- 
 tion of the rule would be questionable. But its moderation 
 was insisted upon in comparison with the extensive grants of 
 the European sovereigns. The comparative moderation, how- 
 ever, of a principle will not be sufficient to give it validity as 
 a principle of international law, if it should be not in accord- 
 ance with the practice of nations. 
 
 But Mr. Monroe, under whose administration as President 
 of the United States this principle was advanced by Mr. 
 Rush, had, in the negotiations which he, in conjunction with 
 Mr. Pinckney, carried on in 1805 with Spain, propounded a 
 very different principle, viz. : " that whenever any European 
 nation tahes possession of any extent of sea coast, that posses- 
 sion is understood as extending into the interior country, to 
 the sources of the rivers emptying within that coast, to all 
 their branches, and the country tiiey cover, and to give it a 
 right in exclusion of all other nations to the same." 
 
 Now Vattel (i., § 260) observes, — " When a nation takes 
 possession of a country, with a view to settle there, it takes 
 possession of everything included in it, as lands, lakes, riv- 
 ers, &;c." 
 
 Here then the title to the river is made subordinate to the 
 
crozat's gbant. 197 
 
 title to the coast, and such is the case in the charters of the 
 Crown of England, which Mr. Rush alludes to as confirma- 
 tory of his view. The Georgia Charter of 1732, for in- 
 stance, of which he cites a portion, granted " all the lands 
 and territories from the most northern stream of the Savan- 
 nah river, all along the sea coast to the southward unto the 
 most southern stream of the Alatamaha river, and westward 
 fro?n the heads of the said rivers respectively in direct lines to 
 the South Seas, and all that space, circuit, and precinct of 
 land lying within the said boundaries." (Oldmixon's History 
 of the British Colonies in America, i., p. 525.) 
 
 The same principle is sanctioned in the grant of Penn- 
 sylvania and of Carolina, and it is perfectly reasonable : for, 
 as the discovery has taken place from the sea, the approach to 
 the territory is presumed to be from the sea, so that the occu- 
 pant of the sea-coast will necessarily bar the way to any 
 second comer : and as he is supposed, in all these grants, to 
 have settled in vacant territory, he will naturally be entitled 
 to extend his settlement over the vacant district, as there will 
 be no other civilised power in his way. 
 
 Mr. Rush, in order to show that Britain was not the only 
 European nation, who, in her territorial claims on this conti- 
 nent, had had an eye to the rule of assuming water-courses 
 to be the fittest boundaries, cited the charter of Louis XIV. to 
 Crozat. But this very charter bears testimony against the 
 principle advanced by Mr. Rush ; for it is undeniable that 
 the Spaniards discovered the mouth of the Mississippi about 
 1540 ; yet, in the face of this fact, the French king granted 
 to Crozat all the territory between New Mexico on the west 
 and Carolina on the east, as far as the sources of the St. 
 Louis, or Mississippi, under the name of the Government of 
 Louisiana, as a part of his possessions, though Spain had 
 never ceded her title to France ; on the authority, according 
 to Messrs. Pinckney and Monroe, of the discovery made by 
 the French of the upper part of the river, as low down as the 
 Arkansas in 1673, and to its mouth in 1680, and of a settle- 
 ment upon the sea coast in the bay of St. Bernard, by La 
 Salle, in 1685. (British and Foreign State Papers, 1817-18, 
 p. 327.) It was in reference to this settlement that the prin- 
 ciple of the possession of the coast entitling to the possession 
 of the interior country, had been propounded to Spain on the 
 part of the United States. 
 
 But if we examine this principle in its application, we shall 
 
198 THE COLUMBIA RIVER. 
 
 find it lead to very great inconveniences. In the case of the 
 Cokimbia River itself, Mr. Rush claimed the whole of the 
 northwest coast, as far north as the 51st parallel of north lati- 
 tude, because the north branch of the river rises in that lati- 
 tude. But the mouth of Frazer's River is in 49^ N.L., so 
 that the discoverer of the mouth of Frazer's River would be 
 entitled to the coast above the 49th parallel, unless Mr. Green- 
 how means to confine the application of his principle to what 
 is strictly the valley of the river, and this would be to make 
 the headlands, as before remarked, the lines of territorial de- 
 marcation. This certainly would be an intelligible rule, whilst 
 any other interpretation of his meaning would lead to an 
 endless conflict of titles. For otherwise, as observed, the dis- 
 coverer of the mouth of Frazer's River would clash with the 
 discoverer of the mouth of the Columbia River, as Frazer's 
 River extends from 54° 20' to 49°, and the discoverer of the 
 Salmon River, which rises in about 53°, and, after pursuing a 
 northward course, empties itself into the sea a little below 54°, 
 would clash with the discoverer of the mouth of Frazer's 
 River. Mr, Rush's principle seems to assume that all the 
 main rivers of a country pursue a parallel course, and that all 
 the great valleys and mountain ranges are conformable, which 
 however is not the case. Thus the Columbia, after following 
 for some time, in a southward direction, a parallel course to 
 Frazer's River, is suddenly turned aside to the west by the 
 Blue Mountains, which it meets in about 46° N. L., and ar- 
 riving at a gap in the Cascade range, finds its way at once to 
 the sea along that parallel, instead of forming a great lake 
 between the Cascade and Blue Mountains, and ultimately 
 working its wav out where the Klamet at present empties 
 itself into the Pacific. .Mr. Rush's principle, therefore, does 
 not seem to recommend itself by its convenience ; but, as- 
 suming for a moment that it is a recognised principle of in- 
 ternational law, that a " nation discovering a country by en- 
 tering the mojth of its principal river at the sea coast, must 
 necessarily be allowed to claim and hold as great an extent 
 of the interior country as was described by the course of 
 the principal river and its tributary streams," the United 
 States would only be entitled to the valley of the Columbia 
 River, to the country watered by the river itself, and its tribu- 
 taries : it could not claim to come across the Cascade range 
 on the northern side of the Columbia, to cross the highlands 
 which turn ofT the waters on their eastern side into the Co- 
 
DERIVATIVE TITLE OP THE UNITED STATES. 199 
 
 lumbia, and on their western side into Admiralty Inlet ; yet, 
 by virtue of the first entrance by Gray of the mouth of the 
 Columbia River, the United States claim, " in their own 
 right, and under their absolute and exclusive sovereignty and 
 dominion, the whole of the country west of the Rocky Moun- 
 tains, from the 42d to at least as high up as the 51st degree 
 of north latitude." 
 
 Such were the grounds on which the original title of the 
 United States was set up ; her derivative title on this occa- 
 sion was founded upon the cession of the title of Spain by 
 the Treaty of Washington. In support of the Spanish title, 
 Mr. Rush alleged that " Russia had acknowledged it in 1790, 
 as the State Papers of the Nootka Sound controversy would 
 show. But the memorial of the Court of Spain simply states, 
 that in reply to the remonstrance of Spain against the en- 
 croachments of Russian navigators within the limits of Span- 
 ish America (hmits situated within Prince William's Strait,) 
 Russia declared " that she had given orders that her subjects 
 should make no settlement in places belonging to other 
 Powers, and that if those orders had been violated, and any 
 had been made in Spanish America, she desired the King 
 would put a stop to them in a friendly manner." (Annual 
 Register, 1790, p. 295.) But Russia did not acknowledge 
 the limits of Spanish America, as set up by Spain ; on the 
 contrary, we find M. de Poletica, the Russian minister at 
 Washington, in his letter to Mr. Adams of the 28th February 
 1822, distinctly asserting that Russian navigators had pushed 
 their discoveries as far south as the forty-ninth degree of 
 north latitude in 1741, and that in 1789 there were Russian 
 colonies in Vancouver's island, which the Spanish authorities 
 did not disturb, and that Vancouver found a Russian estab- 
 lishment in the Bay of Koniac. (British and Foreign State 
 Papers 1822-23.) Vancouver himself states, that he found 
 a settlement of about one hundred Russians at Port Etches, 
 on the eastern side of Prince William's Sound, and M. de 
 Poletica, in his negotiations with Mr. Adams, maintained the 
 authenticity of the statement in the two official letters pre- 
 served in the Archives of the Marine at Paris, which report 
 that in 1789 Captain Haro, in the Spanish packet St. Charles, 
 found a Russian settlement in the latitude of 4H° and 49°, 
 (State Papers, 1825-26, p. 500.) Fleurieu, the French 
 hydrographer, considers these numbers to be erroneous, and 
 that 58° and 59° ought to be read ; but he gives no other 
 
200 RUSSIAN AMERICAN COMPANY. 
 
 reason llian that the English traders had fully ascertained 
 that the Russians had no establishment to the south of 
 Nootka Sound, which is between 49 and 50 degrees. So 
 far, at least, were the Russians from practically recognis- 
 ing the title of Spain up to 60° north latitude, that in 1799 
 the Emperor Paul granted to the Russian American Com- 
 pany the exclusive enjoyment of the north-west coast as 
 far soutii as 65° north lat., in virtue of the discovery of it 
 by Russian navigators, and authorised them to extend their 
 discoveries to the south of 55°, and to occupy all such terri- 
 tories as should not have been previously occupied and placed 
 under subjection by any other nation, (Greenhow, p. IVSS.) 
 It was further urged by Mr. Rush, that Spain had expressly 
 asserted in 1790, that her territories extended as far as the 
 60th degree of north latitude ; and that she had always main- 
 tained her possessions entire, notwithstanding attempted en- 
 croachments upon them. This, however, was not admitted 
 by the British Minister at the Court of Madrid : moreover, it 
 was by implication denied in the very first article of the 
 treaty, by which it was stipulated that the buildings and 
 tracts of land on the north-west coast of America, or on is- 
 lands adjacent to the continent, of which the subjects of his 
 Britannic Majesty had been dispossessed about the middle of 
 April, 1789, by the Spaniards, should be restored to the said 
 British subjects. Again, it was contended by Mr. Rush, that 
 " any claim on the part of Great Britain, under the voyage of 
 Captain Cook, was sufficiently superseded (passing by every 
 thing else) by the Journal of the Spanish expedition from San 
 Bias, in 1775, kept by Don Antonio Maurelle, and published 
 by Daincs Barrington, a British author," in his Miscellanies. 
 It is, however, quite a novel view of the law of nations, that 
 a clandestine discovery should be set up to supersede a patent 
 discovery, notified to all the world by the authoritative publi- 
 cation of the facts. Thus Lord Stowell, in the case of the 
 Fama (5 Robinson's Reports, 115,) says, "In newly-discov- 
 ered countries, where a title is meant to be established for the 
 first time, some act of possession is usually done, and pro- 
 claimed as a notification of the fact. In a similar manner, in 
 the case of derivative title, it is a recognised rule of interna- 
 tional law, that sovereignty does not pass by the mere words 
 of a treaty, without actual delivery. When stipulations of 
 treaties," observes Lord Stowell, " for ceding particular coun- 
 tries are to be carried into execution, solemn instruments of 
 
CONVENTION OF THE ESCURIAL. 201 
 
 cession are drawn up, and adequate powers Rxe forinally given 
 to the persons by whom the actual deHvery is to be made. In 
 modern times more especially, such a proceeding is become 
 almost a matter of necessity, with regard to the territorial 
 establishments of the states of Europe in the New World. 
 The treaties by which they are affected may not be known 
 to them for many months after they are made. Many arti- 
 cles must remain executory only, and not executed till carried 
 into effect ; and until that is done by some public act, the for- 
 mer sovereignty must remain. In illustration of the practice 
 of nations being in accordance with this principle, that emi- 
 nent judge cited the instances of the cession of Nova Scotia 
 to France in 1667, of Louisiana to Spain in 1762, and of East 
 Florida to Spain in 1803, in all of which cases the sove- 
 reignty was held not to have passed by the treaty, but by a 
 subsequent formal and public act of notification. Claims of 
 territory are claims of a most sacred nature, and, as the case 
 of vacant lands, a claim of discovery by one nation is to 
 supersede and extinguish thence-forward the rights of all other 
 nations to take possession of the country as vacant, the reason 
 of the thing requires that the newly-acquired character of the 
 country should be indicated by some public act. Thus Mr. 
 Greenhow (p. 116) observes, that the Government of Spain, 
 by its silence as to the results of the expedition of Perez in 
 1744, deprived itself " of the means of establishing, beyond 
 question, his claim to the discovery of Nootka Sound, which 
 is now, by general consent, assigned to Captain Cook." 
 
 In this conference, the Convention of the Escurial, or, as it 
 was termed, the Nootka Sound Convention, was introduced 
 by Mr. Rush, in accordance with the express instructions of 
 the United States Government. Mr. Greenhow seems to 
 consider that this was an impolitic step on the part of the 
 United States, as they thereby admitted it to be a subsisting 
 treaty. Mr. Rush certainly maintained that the convention 
 contained recognitions of rights, such as the exclusive colonial 
 rights of Spain, but he further contended that, " whilst, by it, 
 the nations of Europe generally were allowed to make settle- 
 ments on that coast, it was only for the purposes of the trade 
 with the natives, thereby excluding the right of any exclusive 
 or colonial establishments for other purposes." To the same 
 purport Mr. Greenhow (p. 340) in a note says, " The princi- 
 ples settled by the Nootka Sound Convention were : — 
 
 '* 1st. That the rights of fishing in the South Seas ; of 
 
202 MEMORIAL OF SPAIN. 
 
 tradinfr with the natives of the north-west coast of America ; 
 and of maling setUcmenis on the coast itself^ for the purposes 
 of that trade, north of the actual settlements of Spain, were 
 common to all the European nations, and of course to the 
 United States." 
 
 This view, however, of the purport of the Convention of 
 the Escurial, falls short of the full bearing of the 3rd article, 
 which is the one alluded to ; by which it was agreed, " that 
 their respective subjects shall not be disturbed or molested, 
 either in navigating or carrying on their fisheries in the Pa- 
 cific Ocean, or 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 jnaking settlements there." There is no restriction here 
 as to the object of the settlement : on the contrary, the 
 making settlements is specified as distinct from the landing 
 on the coast for the purposes of trade. It is obvious that, if 
 the intention of the framers of the convention had been such 
 as asserted by Mr. Rush, they would have worded the article 
 otherwise, viz., " or in landing on the coasts of those seas, or 
 in making settlements there, in places not already occupied, 
 for the purpose of carrying on their commerce with the natives 
 of the country." The argument, therefore, advanced by Mr. 
 Rush, must, upon the face of the words of it, be held to give 
 an imperfect view of the rights mutually acknowledged by the 
 Treaty of the Escurial. 
 
 But the meaning of the word " settlement'* in the treaty 
 will be obvious, if either the antecedent facts, or the antece- 
 dent negotiations, are regarded. In the memorial of the 
 Court of Spain [Annual Register, 1790, p. 295,] it is stated, 
 that before the visit of Martinez to Nootka, Spain did not 
 know that the English had endeavoured to make settlements 
 on the northern parts of the Southern Ocean, though she 
 had been aware of trespasses made by the English on some 
 of the islands of those coasts. Martinez, on arriving at 
 Nootka, had found two American vessels, [the Columbia and 
 Washington,] but as it appeared from their papers that they 
 were driven there by distress, and only came in there to refit, 
 he permitted them to proceed upon their voyage. 
 
 " He also found there the Iphigenia from Macao, under 
 Portuguese colours, which had a passport from the Governor ; 
 and though he [the captain] came manifestly with a view to 
 trade there, yet the Spanish Admiral, when he saw his in- 
 
colnett's instructions. 203 
 
 structions, gave him leave to depart, upon his signing an 
 engagement to pay the value of the vessel, should the Gov- 
 ernment of Mexico declare it a lawful prize. 
 
 " With this vessel there came a second [the North-west 
 America,] which the Admiral detained and a few days after 
 a third, named the Argonaut, from the above-mentioned 
 place. The captain [Colnett] of this latter was an Eng- 
 lishman. He came not only to trade, but brought every 
 thing with him proper to form a settlement there and to fortify 
 it. This, notwithstanding the remonstrances of the Spanish 
 Admiral, he persevered in, and was detained, together with 
 his vessel. 
 
 " After him came a fourth English vessel, named the Prin- 
 cess Royal, and evidently ybr the same purposes. She like- 
 wise was detained, and sent into Port St. Bias, where the 
 pilot of the Argonaut made away with himself." 
 
 What these purposes were, is more fully shown from the 
 letter of instructions which Capt. Colnett carried with him, 
 and which is to be found in the Appendix to Meares' Voyages, 
 having been annexed to Meares' Memorial. 
 
 *' In planning a factory on the coast of America, we look 
 to a solid establishment, and not to one that is to be aban- 
 doned at pleasure. We authorise you to fix it at the most 
 convenient station, only to place your colony in peace and 
 security, and fully protected from the fear of the smallest 
 sinister accident. The object of a port of this kind is to 
 draw the Indians to it, to lay up the small vessels in the 
 winter season, to build, and for other commercial purposes. 
 When this point is effected, different trading houses will be 
 established at stations, that your knowledge of the coast and 
 its commerce point out to be most advantageous." 
 
 That the avowed object of Capt. Colnett's expedition was 
 in conformity with these instructions, is confirmed by the 
 letter which Gray, the captain of the Washington, and Ingra- 
 ham, the mate of the Columbia, both of them citizens of the 
 United States, 'addressed to the Spanish commandant from 
 Nootka Sound in August 'J, 1792, and which Mr. Greenhow 
 has published in his Appendix [p. 416] — " It seems Captain 
 Meares, with some other Englishmen at Macao, had con- 
 cluded to erect a fort and settle a colony in Nootka Sound ; 
 from what authority we cannot say. However, on the arri- 
 val of the Argonaut, we heard Captain Colnett inform the 
 Spanish commodore he had come for that purpose, and to hoist 
 
204 AUTHORIZED SPANISH ACCOUNT. 
 
 the British flag, take formal possession, &;c. ; to which the 
 commodore answered, he had taken possession already in the 
 name of his Catholic Majesty ; on which Capt. Colnett 
 asked, if he would be prevented from building a house in the 
 port. The commodore, mistaking his meaning, answered 
 him he was at liberty to erect a tent, get wood and water, d:c., 
 after which, he was at liberty to depart when he pleased ; but 
 Capt. Colnett said, that was not what he wanted, but to build 
 a block-house, erect a fort, and settle a colony for the Crown 
 of Great Britain. Don Estevan Jose Martinez answered. No ; 
 that in doing that, he should violate the orders of his king, 
 run a risk of losing his commission, and not only that, but it 
 would be relinquishing the Spaniards^ claiiti to the coast ; 
 besides, Don Martinez observed, the vessels did not belong to 
 the King, nor was he intrusted with powers to transact such 
 public business. On which Capt. Colnett answered, he was 
 a king's officer : but Don Estevan replied, his being in the 
 navy was of no consequence in the business." 
 
 The authorised Spanish account in the Introduction of the 
 Voyage of Galiano and Valdes [p. cvii.] is in perfect har- 
 mony with the contemporaneous American statement. Mr. 
 Greenhow has quoted a portion of it in a note to his work, 
 [p. 197,] which may be referred to more conveniently than 
 the Spanish original, of which the following is a translation : — 
 *' There entered the same port, on the 2d of July, the English 
 packet-boat Argonaut, despatched from Macao by the English 
 Company. Her captain, James Colnett, was furnished with 
 a license from the King of England, authorising him [iba 
 autorizado con ordenes del Rey] to take possession of the 
 Port of Nootka, to fortify himself in it, and to establish a 
 factory for storing the skins of the sea-otter, and to preclude 
 other nations from engaging in that trade, with which object 
 he was to build a large ship and a schooner. So manifest an 
 infringement of territorial rights led to an obstinate contest 
 between the Spanish commandant and the English captain, 
 which extended to Europe, and alarmed the two Powers, 
 threatening them for some time with war and devastation, 
 the fatal results of discord. Thus a dispute about the posses- 
 sion of a narrow territory, inhabited only by wretched Indians, 
 and distant six thousand navigable leagues from Europe, 
 threatened to produce the most disastrous consequences to 
 the whole world, the invariable result, when the ambition or 
 
SETTLEMENT EQUIVALENT TO COLOTfT. 205 
 
 vanity of nations intervenes, and prudence and moderation 
 are wanting in contesting rights of property." 
 
 Spain, at the commencement of the negotiations, expressly 
 S'equired through her ambassador at the Court of London, on 
 February 10, 1790, " that the parties who had planned these 
 expeditions should be punished, in order to deter others^rowi 
 making settl€?nents on territories occupied and frequented by 
 the Spaniards for a number of years." Great Britain, in 
 undertaking that her subjects should not act against the just 
 and acknowledged rights of Spain, maintained for them an 
 indisputable right to the enjoyment of a free and uninterrupt- 
 ed navigation, commerce, and fishery, and to the possession 
 of such establishments as they should form with the consent 
 of the natives of the country, not previously occupied by any 
 of the European nations. The v/ord " establishment" here 
 made use of is synonymous with "settlement,'" etahlissement 
 being the expression in the French version of the treaty 
 wherever settlement occurs in the English version. Both 
 these terms have a recognised meaning in the language of 
 treaties, of a far wider extent than that to which Mr. Rush 
 sought to limit the language of the Convention of the Escu- 
 rial. In the convention itself the word " settlement" is 
 applied, in the 4th article, to the Spanish colonies ; in the 
 oth, it is applied to the parts of the coast occupied by the 
 subjects of either Power since 1789, or hereafter to be 
 occupied ; in the 6th, to the parts of the coast which the 
 subjects of both Powers were forbidden to occupy. There is 
 nothing in the context to warrant the supposition that the 
 usual meaning was not to be attached to the word *' settle- 
 ment" on this occasion, paraely, a territorial settlement, such 
 as is contemplated in the 3rd article of the Treaty of 1783 : 
 *' and that the American fishermen shall have liberty to dry 
 and cure fish in any of the unsettled bays, harbours, and 
 creeks of Nova Scotia, Magdalen Islands, so long as the 
 same shall remain unsettled : but so soon as the same, or 
 either of them, shall be settled, it shall not be lawful for the 
 said fishermen to dry or cure fish at such settlement without a 
 previous agreement with the inhabitants, proprietors^ or poS' 
 sessors of the ground. 
 
 In the same manner, during the negotiations of 1818, the 
 settlement at the mouth of the Columbia River was the term 
 applied by Mr, Rush to Astoria. During the discussions 
 
 10 
 
!06 LANGUAGE OF CHARTERS AND TREaTIEST. 
 
 between Spain and the United States prior to the Florida 
 Treaty, the settlement in the Bay of St. Bernard, is the 
 appellation given to the French colony of La Salle ; and in 
 Crozat's grant the word etahlissemens is similarly employed. 
 That " settlement" is not the received expression in the lan- 
 guage of diplomatists for temporary trading stations, may be 
 inferred from a single instance in the Treaty of 1794, by the 
 second article of which it was provided, — " the United States, 
 in the mean time, at their discretion extending their settlC' 
 ments [leurs etahlissemens] to any post wiihin the said boun- 
 dary line, except within the precincts or jifrisdiction o^ any o^ 
 the said posts. AH settJers and trcfders within the said posts 
 [tons les colons et commercans olabiis dans I'enceinte et 
 la jurisdiction des dites postes] shall continue to enjoy unmo- 
 lested all their property of every kind, and shall be protected 
 therein." 
 
 One instance more will suffice. Treaties must be construed 
 in accordance with the received and ordinary meaning of the 
 language, unless otherwise specified, especially when it is 
 sought to attach an unusual sense to any particular term, 
 which sense is ordinarily expressed by some other well-known 
 term. Thus, the 11th article of the Treaty of Paris serves 
 to show, that a station exclusively for the purposes of trade 
 with the natives is not termed a settlement, or etahlissement, 
 but a factory, or comptoir. " In the East Indies Great Bri- 
 tain shall restore to France, in the conditions they are now in, 
 the different factories [les diflerens comptoirs] which that 
 crown possessed, as well on the coast of Coromandel and 
 Orissa as on that of Malabar, as also Bengal, at the beginning 
 of the year 1740." [Jenkinson's Collection of Treaties, v.ol. 
 ii., p. 185 ; Martens' Traites, i., p. 112.] 
 
 In remarkable contrast to this we find in the convention of 
 commerce between Great Britain and the United States, 
 signed at London, July 3, 1815, the following words in the 
 third article : — " His Britannic Majesty agrees that the vessels 
 of the United States of America shall be admitted and hospi- 
 tably received at the principal settlements of the British domin- 
 ions in the East Indies, viz., Calcutta, Madras, Bombay, and 
 Prince of Wales' Island, and that the citizens of the said Unit- 
 ed States may freely carry on trade between the said princi- 
 pal settlements and the said United States." In this latter 
 case it is no longer trading posts, but territorial establishments 
 which are spoken of, and the word settlements is distinctively 
 ftptplied to them. 
 
207 
 
 CHAPTER XVI. 
 
 NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT 
 BRITAIN IN 1826-27. 
 
 Revival of Negotiations. — Written Statements of respective Claims. — 
 The United States. — Great Britain. — Rights supposed to be derived 
 from the Acquisition of Louisiana. — JefFerys' French America. — Cession 
 of Canada. — The Illinois Country. — Treaty of Utrecht. — Treaty of 
 Paris. — French Maps. — Charters. — Declaration of Court of France in 
 1761, as to respective Limits of Canada and Louisiana. — Contiguity of 
 Territory. — Hudson's Bay Territories. — Atlantic Colonies. — Cession by 
 France of the left Bank of the Mississippi. — Mr. Gallatin's Doctrine of 
 Contiguity. — Assumptions not admissible. — Claim to an exclusive Title 
 by Contiguity. — Argument from Numbers. — Derivative Title from 
 Spain. — Meaning of the Word " Settlement" in the Treaty of the Es- 
 curial. — Mr. Gallatin's Doctrine respecting " Factories." — Intermixed 
 Settlements not incompatible with distinct Jurisdiction — The Conven- 
 tion contained a mutual Recognition of Rights. — General Law of Na. 
 tions may be appealed to as supplementary to the Treaty. — Priority of 
 Settlement. — Vattel. — Territory in use never granted for the purpose 
 of making Settlements — Treaty of Paris. — Usufructuary Right. — Set. 
 tlements not to be disturbed. — Territory in chief not reserved. — Con- 
 vention of 1827. 
 
 The subject of a definitive arrangement of the respective 
 claims of the two nations to the country west of the Rocky- 
 Mountains, the sovereignty over which had been placed in 
 abeyance for ten years by the Convention of 1818, was once 
 more revived in 1826, on the arrival in London of Mr. Galla- 
 tin, with full powers from the United States to resume the 
 discussion. The British commissioners renewed their former 
 proposal of a boundary line drawn along the 49th parallel 
 from the Rocky Mountains to M'Gillivray's River, the north- 
 eastern branch of the Columbia, and thence along that river 
 to the Pacific Ocean, and subsequently " tendered in the spirit 
 of accommodation the addition of a detached territory on the 
 north side of the river, extending from Bulfinch's (Gray's or 
 Whidbey's) Harbour on the Pacific, to Hood's Canal on the 
 Straits of Fuca. Mr. Gallatin, on his part, confined himself 
 to the previous offer of the 49th parallel to the Pacific, with 
 the free navigation to the sea of such branches of the Colum- 
 bia as the line should cross at points from which they are 
 
208 MR. Gallatin's statement. 
 
 navigable by boats. The claims of the two nations were on 
 this occasion formally set forth in written statements, and 
 annexed to the protocol of the sixth and seventh conferences 
 respectively. They were published with President Adams's 
 Message to Congress of December 12, 1827, and are both 
 inserted in full in the second edition of Mr. Greenhow's His- 
 tory, lately published. The British statement alone was 
 published in his first edition, but the United States' counter- 
 statement, a very able paper, which was a great desideratum, 
 has been annexed to the second edition. 
 
 It is much to be regretted that so interesting a collection of 
 state papers as the documents of Congress contain, are almost 
 inaccessible to the European reader, since a complete collec- 
 tion is not to be met with in any of our great public libraries 
 in England or France — those of the British Museum, for ex- 
 ample, and of the Chamber of Deputies, having been in vain 
 consulted for this purpose. It was intended to annex both the 
 written statements on this occasion in an Appendix to the 
 present work, but the recent publication of the negotiations 
 of 1844-5, has rendered this step unnecessary. 
 
 On this occasion Mr. Gallatin grounded the claims of the 
 United States — first of all upon their acquisition of Louisiana, 
 as constituting as strong a claim to the westwardly extension 
 of that province over the contiguous vacant territory, and to 
 the occupation and sovereignty of the country as far as the 
 Pacific Ocean ; and, secondly, on the several discoveries of 
 the Spanish and American navigators. These distinct titles, 
 it was maintained, " Though in different hands, they would 
 conflict with each other, being now united in the same Power, 
 supported each other. The possessors of Louisiana might 
 have contended, on the ground of contiguity, for the adjacent 
 territory on the Pacific Ocean, with the discoveries of the 
 coast and of its main rivers. The several discoveries of the 
 Spanish and American navigators might separately have been 
 considered as so many steps in the jirogress of discovery^ and 
 giving only imperfect claims to each party. All these various 
 claims, from whatever consideration derived, are now brought 
 united against the pretensions of any other nation." 
 
 " These united claims," it was urged, " established a 
 stronger title to the country above described, and along the 
 coast as far north, at least, as the 49th parallel of latitude, 
 than has ever, at any former time, been asserted by any na- 
 tion to vacant territory." 
 
ACQUISITION OF LOUISIANA. 209 
 
 The British commissioners, Messrs. Huskisson and Adding- 
 ton, on their part, maintained that the titles of the United 
 States, if attempted to be combined, destroyed each other — 
 if urged singly, were imperfect titles. Great Britain claimed 
 no exclusive sovereignty over any portion of the territory. As 
 for any exclusive Spanish title, that was definitively set at 
 rest by the Convention of Nootka, and the United States ne- 
 cessarily succeeded to the limitations by which Spain herself 
 was bound. In respect to the French title, Louisiana never 
 extended across the Rocky Mountains westward, unless some 
 tributary of the Mississippi crossed them from east to west ; 
 but assuming that it did even extend to the Pacific, it belonged 
 to Spain equally with the Californias, in 1790, when she 
 signed the Convention of Nootka ; and also subsequently, in 
 1792, when Gray first entered the mouth of the Columbia. If 
 then Louisiana embraced the country west of the Rocky 
 Mountains, to the south of 49°, it must have embraced the 
 Columbia itself, and consequently Gray's discovery must have 
 been made in a country avowedly already appropriated to 
 Spain ; and if so appropriated, necessarily included, with all 
 other Spanish possessions and claims in that quarter, in the 
 stipulations of the Nootka Convention." 
 
 As the rights supposed to be derived from the acquisition 
 of Louisiana were on this occasion for the first time set up 
 by the United States, and formed a leading topic in Mr. Gal- 
 latin's counter-statement, their novelty, as well as the impor- 
 tant consequences attempted to be deduced from them, entitled 
 them to precedence in the order of inquiry over the derivative 
 Spanish title, and the original title of the United States, the 
 more so, as the two latter have been already briefly examined. 
 It would seem that Mr. Gallatin did not attempt to extend the 
 boundaries of the colony of Louisiana, beyond the valley of 
 the Mississippi and its tributaries. Crozat's grant would of 
 itself be evidence against any extension of the French title in 
 this respect. But he contended, that " by referring to the 
 most authentic French maps. New France was made to ex- 
 tend over the territory drained by rivers entering into the 
 South Seas. The claim to a westwardly extension to those 
 seas was thus early asserted, as part, not of Louisiana, but of 
 New France. The king had reserved to himself, in Crozat's 
 grant, the right of enlarging the government of Louisiana. 
 This was done by an ordinance dated in the year 1717, which 
 annexed the Illinois to it, and from that time, the province 
 
210 NEW FRANCE. 
 
 extended as far as the most northern limit of the French pos- 
 sessions in North America, and thereby west of Canada or 
 New France. The settlement of that northern limit still fur- 
 ther strengthens the claim of the United States to the territory 
 west of the Rocky Mountains," 
 
 The meaning of this passage is rather obscure, but it seems 
 to imply, that l)y the annexation of the Illinois the province of 
 Louisiana w^as extended to the most northern limit of the 
 French possessions in North America, and thereby cut off the 
 western portion of Canada or New France, and so conse- 
 quently extended itself to the South Seas. If this be the cor- 
 rect view of the argument, then it may be confidently assert- 
 ed, that neither of these positions can be established. In the 
 first place, Crozat's grant, on which the United States ex- 
 pressly and formally relied in the negotiations with Spain, 
 defined the country of Louisiana to be bounded on the west 
 by New Mexico, on the east by Carolina, and northwards to 
 comprise the countries along the River St. Louis (Mississippi) 
 from the sea-shore to the Illinois, together with the River St. 
 Philip, formerly called the Missouries River, and the St. Je- 
 rome, formerly called Wabash, with all the countries, territo- 
 ries, lakes in the land, and the rivers emptying directly or in- 
 directly into that part of the river St. Louis. The words of 
 the grant, if strictly interpreted, limit the province on both 
 sides of the Mississippi to that -part from the sea-shore to the Il- 
 linois, as both the Missouri and the Wabash (Ohio) unite with 
 the Mississippi below the Illinois. But it seems to have been 
 practically held, that Louisiana extended along the w^estern 
 bank of the Mississippi to its source. Thus we find in Jef- 
 ferys' History of the l^rench Dominions in America, published 
 in 1760, Louisiana thus described : — " The province of Louis- 
 iana, on the southern part of New France, extends, accord- 
 ing to the French geographers, from the Gulf of Mexico in 
 about 29° to near 45° north lat. on the western side, (the 
 sources of the Mississippi being laid down in JefTerys' map in 
 about 45°,) and to near 39° on the eastern, and from 86° to 
 near 100° W. longitude from London. It is bounded on the 
 north by Canada, on the east by the British colonies of New 
 York, Pennsylvania, Maryland, Virginia, North and South 
 Carolina, Georgia, and by the peninsula of Florida ; on the 
 south by the Gulf of Mexico ; and lastly, on the west by New 
 Mexico." This description evidently omits the Illinois, but 
 the annexation of the Illinois in 1717 did not give to the pro- 
 
INDIAN RESERVES, 211 
 
 vince of Louisiana the indefinite extent northward which Mr. 
 Gallatin suggests, for the Marquis de Vaudreuil, in ceding the 
 province of Canada to Sir J. Amherst, in 1760, according 
 to his own letter, (Annual Register, 1761, p. 168,) expressly- 
 described Louisiana as extending on the one side to the carry- 
 ing-place of the Miamis, and on the other to the head of the 
 river of the Illinois. The Illinois country itself was a limited 
 district, watered by a river of that name, which had been so 
 called from an Indian nation settled on its banks. This tribe 
 or nation was said to have migrated from the west, along the 
 banks of the Moingona, (the Riviere des Moines,) down to its 
 junction with the Mississippi : it had then established itself a 
 little lower down on the eastern side of the Mississippi, in an 
 exceedingly fertile valley, watered by a tributary of that river, 
 to which it gave its own name of IlHnois, 
 
 The French settlement was in this district, according to 
 Jefferys : its commodious situation enabled it to keep up the 
 communication between Canada and Louisiana, and the fer- 
 tility of the soil rendered it the granary of Louisiana. It 
 may be perfectly true that Illinois was the most northern limit 
 of the French possessions in North America, if by the term 
 possessions is meant the territory in which they had made 
 settlements ; but if the term is intended to include the terri- 
 tory in which they claimed a right to found settlements, the 
 statement would not be correct. 
 
 By the Treaty of Utrecht, the British had precluded them- 
 selves from passing over the limits of the territory of the Bay 
 of Hudson, and all the country south of those limits would be 
 considered amongst " the places appertaining to the French,'* 
 in other words, would be part of New France. But the south- 
 ern boundary of the Hudson's Bay territory would be much 
 to the northward of the Illinois country ; the intermediate dis- 
 trict, it is true, was peopled with various Indian tribes, but the 
 French, as against Great Britain, by the Treaty of Utrecht, 
 had an exclusive title to the country. By the Treaty of Paris 
 in 1763, that title passed from France to Great Britain, and 
 in pursuance of the rights so acquired by the crown of Eng- 
 land, a proclamation was issued, reserving to the Indians, as 
 hunting grounds, all the territories not included within the 
 government of Quebec, or the limits of the territory granted 
 to the Hudson's Bay Company, and enjoining all persons 
 whatever, who should have seated themselves in them, to re- 
 move forthwith from such settlements. (Annual Register, 
 
213 FRENCH MAPS. 
 
 1763, p. 212.) It would thus appear, if New France ever e.T- 
 tended across the continent of America to the Pacific Ocean, 
 the portion of it north of the sources of the Mississippi, and 
 of the Illinois River, passed into the hands of Great Britain, 
 on the ratification of the Treaty of Paris. The claim, how- 
 ever, to the westwardly extension of New France to the Pacific 
 Ocean, requires some better evidence than the maps of the 
 French Geographers. A map can furnish no proof of territo- 
 rial title : it may illustrate a claim, but it cannot prove it. 
 The proof must be derived from facts, which the law of na- 
 tions recognises as founding a title to territory. Maps, as 
 such, that is, when they have not had a special character at- 
 tached to them by treaties, merely represent the opinions of 
 the geographers who have constructed them, which opinions 
 are frequently founded on fictitious or erroneous statements : 
 e. g., the map of the discoveries in North America by Ph. 
 Buache and J. N. de Lisle, in 1750, in which portions of the 
 west coast of America were delineated in accordance with De 
 Fonte's story, (supra, Ch. IV.,) and the maps of north-west 
 America at the end of the seventeenth and beginning of the 
 eighteenth centuries, which represent California as lately as- 
 certained to be an island. An examination of the collection 
 in the King's Library at the British Museum, will remove all 
 scepticism on this head. Such documents are entitled, of 
 themselves, to far less consideration from foreign Powers, than 
 the charters of sovereigns. These, indeed, may be binding 
 on the subjects of the sovereigns by their own inherent au- 
 thority, but against other nations, they must be supported ex- 
 pressly, on the face of them at least by some external authori- 
 ty, which the law of nations acknowledges. Thus, we find 
 generally the title of discovery recited in the preamble of char- 
 ters ; it is, however, competent for other nations to dispute 
 this title, or to dispute the extent to which the grant goes. 
 The charter of Carolina and Georgia, elsewhere recited, will 
 furnish a case in point. In these the grant extends westward 
 to the South Seas, but this would convey no title to the set- 
 tlers against the French, who barred the way to the South 
 Seas by their settlements in Louisiana, and who would dis- 
 pute the asserted claim, so that the charters would be inope- 
 rative in their full extent. 
 
 But when Mr. Gallatin stated, that from the ordonnance of 
 1717 the province of Louisiana extended as far as the most 
 northern limit of the French possessions in North America, 
 
FRENCH DECLARATION. 213 
 
 and thereby west of Canada or New France, he has probably 
 overlooked the words of the ultimatum of the Court of France, 
 of the 5th August 1761, remitted by the Due de Choiseul to 
 Mr. Stanley, the British plenipotentiary, in the course of the 
 negotiations in that year after the surrender of Canada ; — 
 " The King of France has, in no part of his memorial of 
 propositions, affirmed that all which did not belong to Canada 
 appertained to Louisiana; it is even difficult to conceive such 
 an assertion could be advanced. France, on the contrary, 
 demanded that the intermediate nations between Canada and 
 Louisiana, as also between Virginia and Louisiana, shall be 
 considered as neutral nations, independent of the sovereignty 
 of the two crowns, and serve as a barrier between them." 
 (Historical Memorial of the Negotiations, published at Paris 
 by authority, 1761, May be referred to in Jenkinson's Coll. 
 of Treaties, vol. ii.) Mr. Gallatin says elsewhere, in allud- 
 ing to royal charters : — " In point of fact, the whole country 
 drained by the several rivers emptying into the Atlantic 
 Ocean, the mouths of which were within those charters, has 
 from Hudson's Bay to Florida, and it is believed without ex- 
 ception, been occupied and held by virtue of those charters. 
 Not only has this principle been fully confirmed, but it has 
 been notoriously enforced, much beyond the sources of the 
 rivers on which the settlements were formed. The priority 
 of the French settlements on the rivers flowing westwardly 
 from, the Alleghany Mountains into the Mississippi, was alto- 
 gether disregarded ; and the rights of the Atlantic colonies to 
 extend beyond those mountains, as growing out of the conti- 
 guity of territory,, and as asserted in the earliest charters, 
 was effectually and successfully enforced." In reply to these 
 remarks it may be observed, that the limits of the Hudson's 
 Bay territory were settled by the Treaty of Utrecht, in 1713, 
 those of the Atlantic colonies by the Treaty of Paris, 1763, 
 and in the preliminary negotiation no allusion is any where 
 made to rights founded on charters, or to rights o^ contiguity. 
 On the contrary, in regard to the Hudson's Bay territories, 
 the peaceable acquiescence of the Marquis de Frontenac, 
 then Governor of Canada, in the settlement of the Bay of 
 Hudson by the English company, was maintained to be a bar 
 to any claims on the part of the French to question, at a sub- 
 sequent period, the title of which the British crown asserted 
 on the grounds o^ discovery. Again, in respect to the Atlan- 
 tic colonies, their right to extend themselves to the banks of 
 
 10* 
 
214 fRENCH CESSIONS. 
 
 the Mississippi was never enforced against the French, "as 
 growing out of the contiguity of territory, and as asserted in 
 the earliest charters. On the contrary, in the negotiations 
 of 1761, it was admitted by Great Britain, that in respect to 
 the course of the Ohio, and the territories in those parts, the 
 pretensions of the two crowns had been contentious before the 
 surrender of Canada, and in respect to the nations on the east 
 bank of the Mississippi, Great Britain confined herself to as- 
 serting that they had been always reputed to be under her 
 protection, and proposed to the French King, that " for the 
 advantage of peace, he should consent to leave the interme- 
 diate countries under the protection of Great Britain, and 
 particularly the Cherokees, the Creeks, the Chicosaws, the 
 Chactaws, and another nation, situate between the British 
 settlements and the Mississippi.^' The result of these and 
 subsequent negotiations was, that France, by the seventh arti- 
 cle of the Treaty of Paris, agreed that the limits of the Bri- 
 tish and French territories respectively should be fixed by a 
 line drawn along the middle of the Mississippi, from its source 
 to the River Iberville [depuis sa naissance jusqu'a la riviere 
 d'Iberville,] and ceded to Great Britain all that she possessed or 
 was entitled to possess, on the left bank of the Mississippi, 
 with the exception of New Orleans. 
 
 This cession by France of all that she possessed, or was 
 entitled to possess, on the left bank of the River Mississippi, 
 would convey to Great Britain all her title to the Illinois and 
 other districts north of the Illinois country, if she possessed 
 any ; but she could only possess any title to them as forming 
 part of the dependencies of Canada or New France. Out of 
 these, indeed, the province of Louisiana had been carved by 
 the grant to Crozat in 1712, and from these the Illinois terri- 
 tory had been detached in 1717, by the charter of Law's Mis- 
 sissippi Company; the remainder, such as it was, had re- 
 tained its original character of New France or Canada un- 
 changed, as well as its original limits, such as they had been 
 determined to be, either by special commissioners, in pursu- 
 ance of the provisions of the Treaty of Utrecht, or by an 
 understanding between the crowns of France and Great Bri- 
 tain. If therefore the French had any possessions in America 
 north of the sources of the Mississippi, as Louisiana did not 
 extend further north than those sources, they must have been 
 part of the original province of Canada, and have been ceded 
 to Great Britain with Canada and all her dependencies. Tho 
 
©OCTRINE OP CONTIGUIXr, 215 
 
 western boundary of Louisiana was never attempted to be 
 extended by the French beyond the limits of Crozat's grant, 
 by which Louisiana was expressly defined to be bounded by 
 New Mexico on the w^est, and impliedly by the head- waters 
 of the Missouri river. 
 
 " The actual possession," Mr. Gallatin maintained, " and 
 populous settlements of the valley of the Mississippi, including 
 Louisiana, and now under one sovereignty, constitute a strong 
 claim to the westwardly extension of that province over the 
 contiguous vacant territory, and to the occupation and sove- 
 reignty of the country as far as the Pacific Ocean. If some 
 trading factories on the shores of Hudson's Bay have been 
 considered by Great Britain as giving an exclusive right of 
 occupancy as far as the Rocky 5lountains ; if the infant set- 
 tlements on the more southern Atlantic shores justified a 
 claim thence to the South Seas, and which was actually en- 
 forced to the Mississippi, that of the millions already within 
 the reach of those seas cannot consistently be resisted. For it 
 will not be denied that the extent of contiguous territory, to 
 which an actual settlement gives a prior right, must depend, 
 in a considerable degree, on the magnitude and population of 
 that settlement, and on the facility with which the vacant 
 adjoining land may, within a short time, be occupied, settled, 
 and cultivated by such population, as compared with the pro- 
 bability of its being thus occupied and settled from another 
 quarter." 
 
 In examining Mr. Gallatin's argument in the above passage, 
 it will be seen that he assumes, as the foundation of it, two 
 suppositions as to the Hudson's Bay factories and the settle- 
 ments on the Atlantic shores, which are not admissible. 
 Great Britain never considered her right of occupancy up to 
 the Rocky Mountains to rest upon the fact of her having es- 
 tablished factories on the shores of the Bay of Hudson, i. e., 
 upon her title by mere settlement, but upon her title by dis- 
 covery confirmed by settlements, in which the French nation, 
 her only civilised neighbour, acquiesced, and which they sub- 
 sequently recognised by treaty : and in regard to the infant 
 settlements on the Atlantic shores, they were planted there 
 either by virtue of discovery, as in the case of Virginia, or 
 else upon the plea of the territory "not yet being cultivated 
 or planted, and only inhabited by some barbarous people," as 
 in the case of the Carolinas, which, though occupied succes- 
 sively for a time by Spanish and by French settlers, had been 
 
216 EXCLUSIVE TITLE BY CONTIGUITY. 
 
 abandoned by all European nations from the year 1567 till 
 1663, when Charles II. granted letters patent to the Earl of 
 Clarendon and seven others, asserting a title to it by virtue 
 of the discoveries of Sebastian Cabot, and its abandonment 
 by other Powers. If, therefore, the British crown asserted a 
 right of extending its settlements beyond the heads of the 
 rivers emptying themselves into the Atlantic to the South 
 Seas, it was not by virtue of its infant settlements, but by 
 the same title, whatever it might be, which, according to 
 the practice of nations, would authorise it to make those 
 settlements, since the claim was asserted in the very char- 
 ters which empowered the settlement to be made. But 
 the settlement was limited to lands "not yet cultivated or 
 planted," in other words, to vacant territory. Was the claim 
 then actually enforced by the British to the Mississippi ? 
 The history of the Treaty of Paris furnishes a negative 
 answer to the question. The claim, indeed, which Mr. 
 Gallatin attempts to set up, is to an exclusive title by conti- 
 guity. But such a title can only be founded on necessity, 
 when the law of self-preservation is paramount to all other 
 considerations. Convenience alone will not establish an 
 absolute title, though it may found a conditional title, subject 
 to the acquiescence of other States : but the reason which Mr. 
 Gallatin alleged in support of the title by contiguity ; namely, 
 the facility with which the vacant territory would be occupied 
 by the teeming population of the United States, is but a dis- 
 guised appeal to the principle of the vis major, and strii^es at 
 the root of the fundamental axiom of international law, that 
 all nations are upon a footing of perfect equality as to their 
 obligations and rights. " Power or weakness," observes 
 Vattel, "does not in this respect produce any difference. A 
 dwarf is as much a man as a giant : a small republic is no 
 less a sovereign state than the most powerful kingdom ;" so 
 that every argument which rests on the grounds that the mil- 
 lions already within reach of the Pacific Ocean, entitle the 
 United States by their numbers to the occupation and sove- 
 reignty of the country, to the exclusion of Great Britain, is out 
 of place where questions of greater right, and not of greater 
 interest, are under discussion. It should however not be for- 
 gotten, in discussing the probability of the Oregon Territory 
 being occupied from any other quarter than the United States, 
 that British subjects are restricted by the charter of the Hud- 
 son's Bay Company from settling there, it being declared in 
 
TRADING FACTORIES, Sit 
 
 that charter, "that no British subjects, other than and except 
 the said Governor and Company, and their successors, and 
 the persons authorised to carry on exclusive trade by them, 
 shall trade with the Indians" within such parts of North 
 America as are " to the northward and to the westward of 
 the lands and territories belonging to the United States of 
 America." 
 
 In respect to the derivative title from Spain, Mr. Gallatin, 
 in admitting the Convention of the Escurial to be now in 
 force, as being of a commercial nature, and therefore re- 
 newed, in common with all the treaties of commerce existing 
 previously to the year 1796, between Spain and Great Britain, 
 by the treaty signed at Madrid on August 28, 1814, (Martens' 
 Traites, Nouveau Recueil, iv., p. 122,) contended in the first 
 place that the word " settlement " was used in the third and 
 fifth articles of the convention, in the narrower sense which 
 Mr. Rush had endeavoured to attach to it in the negotiations 
 of 1824, namely, as "connected with the commerce to be 
 carried on with the natives ;" and, secondly, that if the word 
 "settlement" was employed in its most unlimited sense, still 
 that the provisions of the convention had no connection with 
 an ultimate partition of the country for the purposes of per- 
 manent colonisation. The truth of the last observation, to a 
 certain extent, is self-evident, from the fact of the ultimate 
 partition of the country being still the subject of discussion ; 
 but in respect to the word " settlement," some objections to 
 the attempt to narrow its meaning have been already stated, 
 and may be referred to above, (p. 291-297.) A few further 
 observations, however, may not be superfluous. Mr. Galla- 
 tin, in another part of his counter-statement says, " It is also 
 believed, that mere factories, established solely for the pur- 
 pose of trafficking Avith the natives, and without any view to 
 cultivation and jyermanent settlement^ cannot, of themselves, 
 and unsupported by any other consideration, give any better 
 title to dominion and absolute sovereignty, than similar estab- 
 lishments made in a civilised country." 
 
 If we admit, for the sake of the argument, that temporary 
 trading stations, erected without any view to cultivation and 
 permanent settlement, cannot of themselves establish a title 
 to exclusive dominion and sovereignty, this very fact alone 
 would be conclusive to show, from the provisions of the fifth 
 article, that such trading stations were not intended by the 
 word "settlement" in the Treaty of the Escurial. The set- 
 
218 PERMANENT SETTLEMENTS. 
 
 tlements there contemplated were only to be made in places 
 not already occupied, and further, " in all places wherever 
 the subjects of either shall hare 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." LFnless the 
 settlements here alluded to would have been considered to 
 give a title of exclusive sovereignty by the recognised law of 
 nations to the party which had formed them, if not otherwise 
 specified, this provision would have been not merely uncalled 
 for, but on the well-known principle of " expressio unius est 
 exclusio alterius," would have tended to narrow rather than 
 to enlarge the rights of the other party. The reason, how- 
 ever, of this " special provision " will be obvious, when it is 
 called to mind that both Spain and Great Britain carefully 
 excluded foreign Powers from all trade with their colonies, 
 and that Spain had asserted in the preliminary negotiations a 
 right of " sovereignty, navigation, and exclusive commerce to 
 the continent and islands of the South Sea," and had also 
 maintained, that " although she might not have establishments 
 or colonies planted upon the coasts or in the ports in dispute, 
 it did not follow that such coast or port did not belong to her." 
 Unless therefore some such provision had been introduced 
 into the treaty, the subsequent settlements on the north-west 
 coast would have been closed against all foreign traders, in 
 conformity to the general laws of both countries. 
 
 But if Mr. Gallatin is justified in advancing, as a principle 
 of international law, that " mere factories, established solely 
 for the purpose of trafficking with the natives, and without 
 any view to cultivation and permanent settlement," such as 
 he alleges the trading posts of the North-west Company to 
 be, cannot of themselves give a good title to dominion and 
 absolute sovereignty, he cuts away from under the United 
 States the ground upon which they had set up their original 
 title to exclusive sovereignty. For the factory of the Pacific 
 Fur Company at Astoria, on the south bank of the Columbia, 
 would be, according to this view, quite as inoperative for the 
 purpose of constituting a title by settlement in favour of the 
 United States as that of the Hudson's Bay Company at Fort 
 Vancouver, on the northern Bank, would be ineffectual for a 
 similar purpose in favour of Great Britain ; and, a fortiori, 
 the passing visit of a merchant ship, such as the Columbia, 
 despatched solely /or the purpose of trafficking icith the natives, 
 
DISTINCT JURISDICTION. 219 
 
 and not with the object of making discoveries, or with any 
 authority to take possession of territory for purposes of per- 
 manent settlement, could never be held entitled to the con- 
 sideration which the United States claim to have attached 
 to it. 
 
 Mr. Gallatin observed that "the stipulations of the Nootka 
 convention permitted promiscuous and intermixed settlements 
 everywhere, and over the whole face of the country, to the 
 subjects of both parties, and even declared every such settle- 
 ment, made by either party, in a degree common to the other. 
 Such a state of things is clearly incompatible with distinct 
 jurisdiction and sovereignty. The convention therefore could 
 have had no such object in view as to fix the relations of the 
 contracting parties in that respect." If, however, it can be 
 shown that such a state of things is not incompatihle ivith dis- 
 tinct jurisdiction, the argument will fall to the ground. 
 
 It appears then to have been decided in the United States 
 Courts, that, "although the territorial line of a nation, ybr 
 the pmyoses of absolute jurisdiction, may not extend beyond 
 the middle of the stream, yet the right to the use of the whole 
 river or bay /or the purposes of trade, navigation, and passage, 
 may be common to both nations." (The Fame, 3 Mason 147, 
 C. C. Maine, 1822, cited in Elliott's American Diplomatic 
 Code, vol. ii.,p. 345.) 
 
 Here then we have the principle recognised of use for the 
 purposes of trade being in a degree common to both nations, 
 yet such a state of things being 7iot incompatible with distinct 
 jurisdiction and sovereignty. 
 
 Still less would the fact of the convention permitting pro- 
 miscuous and intermixed settlements to be made everywhere 
 by the subjects of both parties be incompatible with distinct 
 jurisdiction ; for, as Vattel observes (1. ii., § 93,) "it mayhap, 
 pen that a nation is contented with possessing only certain 
 places, or appropriating to itself certain rights in a country that 
 has not an owner, without being solicitous to take possession 
 of the whole country. In this case, another nation may take 
 possession of what the first has neglected ; but this cannot 
 be done without allowing all the rights acquired by the first 
 to subsist in their full and absolute independence. In such 
 cases, it is proper that regulations should be made by treaty, 
 and this precaution is seldom neglected among civilised na- 
 tions." 
 
 Mr. Gallatin further continues : " On that subject (jurisdic- 
 
220 RECOGNITION Of RIGHTS. 
 
 tion and sovereignty) it (the convention) established or 
 changed nothing, but left the parties M'here it found them, 
 and in possession of all such rights, whether derived from 
 discovery, or from any other consideration, as belonged to 
 each, to be urged by each, whenever the question of perma- 
 nent and separate possession and sovereignty came to be dis- 
 cussed between them." 
 
 It may be perfectly correct to say that the convention " left 
 the parties where it tbund them, and in possession of all such 
 rights, whether derived from discovery or from any other con- 
 sideration, as belonged to each;" for the very object of the 
 third article was not the concession of favours, but the recog- 
 nition of mutual rights. On the other hand, that it left all 
 question of rights open, to be urged by each at any future 
 time, as if there had been no declaration or acknowledgment 
 on the subject, seems not merely to be at variance with the 
 substance of the third article, but to be utterly irreconcilable 
 with the preamble of the convention, which contemplates an 
 amicable arrangement of the differences between the two 
 Crowns, " which, setting aside all retrospective discussion of 
 the rights and pretensions of the two parties, should fix their 
 respective situation for the future on a basis conformable to 
 their true interests, as well as to the mutual desire with which 
 their said Majesties are animated, of establishing with each 
 other, in every thing and in all places, the most perfect friend- 
 ship, harmony, and good correspondence." 
 
 If, indeed, Mr. Gallatin means that whenever the parties 
 should find it desirable to terminate the condition o^ occupation 
 in common^ it would be competent for either party to appeal 
 to the general law of nations, subject to the provisions of the 
 treaty, the reason of the thing at once suggests that recourse 
 must be had to some general principles of law, in a case for 
 which the treaty does not provide. But the general law of 
 nations must only be invoked as supplementary to the special 
 law recognised by the convention. By the special law of the 
 treaty, the mutual right of making settlements in places not 
 already occupied was acknowledged ; but the rights accruing 
 to either party by virtue of such settlements, when made, 
 would be determined by the general law of nations. The 
 reciprocal liberty of free access and unmolested trade with 
 such settlements was provided for by the fifth article ; the 
 treaty, however, was silent as to the relations of the parties 
 in other respects, after they should have made settlements. 
 
TERRITORY IN USE. 221 
 
 These relations then would be determined by the general 
 law. 
 
 The common right of either party to make settlements in 
 places not occupied was recognised by the convention. Occu- 
 pation was thus declared to be the test of exclusive title, and 
 "territory not occupied," was impliedly "territory without 
 an owner." Priority of settlement would thus give as perfect 
 a title under the special law of the convention, as discovery 
 and settlement under the general law of nations. If this 
 view be correct, then Vattel supplies the rule of law which 
 would determine the mutual relations attendant on such set- 
 tlements. " If at the same time two or more nations discover 
 and take possession of an island, or any other desert land with- 
 out an owner, they ought to agree between themselves, and 
 make an equitable partition ; but, if they cannot agree, each 
 will have the right of empire and the domain in the parts in 
 which they first settled.^'' (1. ii., § 95.) 
 
 The mutual right of the two parties to settle in places not 
 )^et occupied, having thus been acknowledged by the conven- 
 tion, the sovereignty was from the nature of things left in 
 abeyance pending the establishing of such settlements^ but 
 there was no provision in the treaty to suspend the operation 
 of the general law of nations, in respect to the territorial 
 rights consequent on such settlements. To negative the 
 operation of the general law, it would be necessary to show 
 that the dominium, utile, as distinct from the sovereignty, was 
 all that accrued by such settlements. But in cases in which 
 the territory in use, {dominium utile) as distinct from the ter- 
 ritory in chief {dominium eminent,) has been granted by treaty, 
 such a concession has never been said to be granted " for 
 the purpose of making settlements," and it may be observed 
 that in such cases, express reference is made to the party who 
 retains the territory in chief. 
 
 Thus in the 17th article of the Treaty of Paris, by which 
 Spain granted to Great Britain a usufructuary right in the 
 territory of the Bay of Honduras, it was provided : — 
 
 " That his Britannic Majesty shall cause to be demolished 
 the fortifications which his subjects shall have erected in the 
 Bay of Honduras, and in other places of the territory of Spain 
 in that part of the world, four months after the ratification of 
 the present treaty. 
 
 " And his Catholic Majesty shall not permit his Britannic 
 Majesty's subjects or their workmen to he disturbed or mo- 
 
222 USUFRUCTUARY RIGHT. 
 
 lested under any pretence whatever in the said places ^\n their 
 occupation of cuttin<T, loading, and carrying away logwood ; 
 and ibr this purpose they may build without hindrance, and 
 occupy uithout interrupiion, the houses which are necessary 
 for themselves or families. 
 
 " And his Catholic Majesty assures to them by these arti- 
 cles the full enjoyment of those advantages and powers on 
 the Spanish coasts and territories, as above stipulated." 
 
 In this case it will be seen that his Catholic Majesty 
 granted to Great Britain the usufructuary right, or, according 
 to the language of the Civil Law, Jus utendi, fruendi, salva 
 rerum substantia, of the peculiar produce of the soil of the 
 Bay of Honduras, reserving to himself the property of the 
 soil, or the territory in chief. 
 
 But on looking once more at the words of the 3d article, it 
 was agreed between the two contracting parties, 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." Now the only pretext for 
 such disturbance or molestation would be the claim of territo- 
 rial right or sovereignty : and that pretext being formally re- 
 linquished by the stipulation not to disturb, the claim of terri- 
 torial right, as founded on considerations anterior to the 
 treaty, was mutually abandoned by either party. Again, the 
 subjects of^ either party were declared entitled to make settle- 
 ments in places not already occupied. If now there was a 
 reservation of territorial right in chief by one party, then the 
 families settling there, which is in effect colonising, (for the 
 cultivation of the soil must be allowed them,) could not be the 
 suljjects of the other party, if they settled and became domi- 
 ciled there ; yet they are acknowledged to retain their cha- 
 racter. Now, such as the subject is, such is the jurisdiction. 
 If, for instance, the absolute and sole territory of the north- 
 west coast of America, exclusive of any other Power, was 
 possessed and retained by Spain, then the jurisdiction over 
 all persons settling there belonged to Spain : the residents in 
 that territory were the subjects of Spain jwo hdc vice, where- 
 soever they were born, agreeably to the principle admitted 
 all over Europe, that every man is the subject of the jurisdic- 
 tion and territory in which he is domiciled. But British sub- 
 
CONVENTION OF 1827. 223 
 
 jects settling in the places not already occupied on the north- 
 west coast of America could not thereby be divested of the 
 character of their original domicile, for it was only in such 
 character that they were entitled not to be disturbed or mo- 
 lested in their settlements, — it was only under the authority 
 and protection of a British sovereign that they were entitled 
 to set foot upon the territory. Other considerations will rea- 
 dily suggest themselves, but it is unnecessary to pursue the 
 subject further. 
 
 These negotiations were brought to a close by the signa- 
 ture of the Convention of 1827, by which the provisions of 
 the 3d article of the Convention of 1818 were further indefi- 
 nitely extended, it being competent however for either party 
 to abrogate the agreement, on giving twelve months' notice 
 to the other party. 
 
•224 
 
 CHAPTER XVII. 
 
 NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT 
 BRITAIN IN 1844-5. 
 
 General line of Argument on cither Side. — Original Title of the United 
 States. — Nationality of a Merchant Ship.— Mr. Buchanan's Statement. 
 — Mr. Rush's View. — The Practice of Nations makes a Distinction be. 
 tvveen pubhc and private Vessels. — Tribunals of the United States. — 
 Laws of South Carolina. — The Distinction rests on the Comity of Na- 
 tions. — It is not arbitrary, at the Will of each Nation, nor can it be dis- 
 turbed. — Dr. Channing on the Character of Merchant Ships. — The 
 taking Possession of a vacant Country for the Purpose of Settlement, is 
 an Act of Sovereignty. — Mr. Gallatin's Letter to Mr. Astor on the 
 Flag. — Discoveries, as the Groundwork of Territorial Title, technical. 
 — Lord Stowell. — Inchoate Acts of Sovereignty. — Vattcl. — Title by 
 Discovery, the Creature of the Comity of Nations. — Gray's first enter, 
 ing the Mouth of the Columbia docs not satisfy the required Conditions. 
 — Heccta's Discovery, in the popular sense of the Term. — Gray's the 
 first Exploration of the Mouth. — Expedition of Lewis and Clarke — 
 Mr. Rush's Mis-statement in 1824, as to the Sources of the Multno- 
 mah, and of Clarke's River. — Inaccuracy in [the Statements of Mr. 
 Calhoun, and of Mr. Buchanan. — The Great Northern Branch of the 
 Columbia not called Clarke's River by Lewis and Clarke. — Clarke's 
 River supposed by them to be a Tributary of the Tacoutche-Tesse. — 
 The Tacoutche-Tesse reputed to be the northernmost Branch of the 
 Columbia River till 1812. — Humboldt's New Spain. — Junction of the 
 Lewis with the Columbia River. — The northernmost Branch of the Co- 
 lumbia first Explored by Thomson. — Lewis and Clarke did not encamp 
 and winter on the north Bank of the Columbia. — Fort Clatsop on the 
 south Bank. — Mr. Packenham's Counter-statement. — Settlements of 
 the United States. — Mr. Calhoun's Statement. — Mr. Henry's trading 
 Fort. — Failure of Captain Smith's Undertaking. — Mr. Astor's Adven- 
 ture. — Astoria on the south Bank of the Columbia. — Rival Station of 
 the North-west Company on the Spokan River. — Astoria not a national 
 
 Settlement No Claim advanced to it by the United States in. the Ne. 
 
 gotiations preceding the Florida Treaty. — Astoria transferred to the 
 North-west Company by Sale. — The United States formally placed in 
 possession of it in 1818. — Mr. Calhoun's Argument. — Confusion of the 
 Settlement with the Territory — The Right of Possession — The Ques- 
 tion at issue in 1818. — Mr. Rush did not then assert a perfect Title. — 
 Mr. Buchanan now maintains an exclusive Title. — The derivative Title 
 of Spain — Inconsistency of the United States Commissioners — Effect 
 of the Nootka Convention. — Contrast of the Claims of the Two Gov. 
 crnments.— Mr. Calhoun's Admission as to Heccta's Discovery —True 
 
NEGOTIATIONS OF 1844-5. 225 
 
 Character of the original Title of the United States. — Not an exclusive 
 Title. — Exclusiveness docs not admit of Degree. — The Title of Spain 
 imperfect by express Convention. — No Rights granted by the Nootka 
 Convention. — Mr. Buchanan's Statement. — Examination of the Argu- 
 ment. — Opinions expressed in Parliament in 1790. — Mr. Pitt's Decla- 
 ration. 
 
 The unexpected publication of the correspondence between 
 Mr. Pakenham, the British Minister, and Messrs. Calhoun 
 and Buchanan, the Secretaries of State at Washington, re- 
 quires that the more important arguments in their respective 
 statements should be briefly examined, lest the present in- 
 quiry should be thought incomplete. No substantially new 
 topic seems to have been advanced during the negotiation, 
 but the treatment of several points in the argument on either 
 side was materially modified. The Commissioners of the 
 United States appear on this occasion to have relied more 
 immediately on the original title of the United States than on 
 the derivative Spanish title which Mr. Rush first set up in 
 1824, or the derivative French title which Mr. Gallatin 
 brought forward in 1826. The British Minister, on the other 
 hand, rested his position more decidedly on the recognition of 
 the title of Great Britain by the Convention of the Escurial, 
 and less on the general proof of it by discovery and settle- 
 ment. 
 
 In reference, then, to the original title of the United States, 
 Mr. Calhoun, in his letter of September 3, 1844, grounded it 
 on the prior discovery of the mouth of the Columbia River by 
 Captain Gray, on the prior exploration of the river from its 
 head- waters by Lewis and Clarke in 1805-6, on the prior 
 settlement on its banks by American citizens in 1809-10, and 
 by the Pacific Fur Company at Astoria in 1811, which latter 
 establishment was formally restored by the British Govern- 
 ment in 181S to the Government of the United States. Mr. 
 Buchanan, in his letter of July 12, 1845, having briefly reca- 
 pitulated these alleged facts, says : — "If the discovery of the 
 mouth of a river, followed up within a reasonable time by the 
 first exploration of its main channel and its branches, and 
 appropriated by the first settlements on its banks, do not con- 
 stitute a title to the territory drained by its waters in the na- 
 tion performing these acts, then the principles consecrated by 
 the practice of civilised nations ever since the discovery of 
 the New World must have lost their force. Those principles 
 were necessary to procure the peace of the world. Had they 
 
220 NATIONALITY OF A MERCHANT SHIP. 
 
 not been enforced in practice, clashing claims to nevvly-dis- 
 covered territory, and perpetual strife among the nations, 
 would have been the inevitable result." 
 
 It may be as well to examine into the real character of 
 these alleged facts, before considering how far they warrant 
 the application of the principle of international law, to which 
 Mr. Buchanan seeks to adapt them. 
 
 In regard to the discovery of the mouth of the Columbia River 
 by Capt. Gray, in the merchant ship Columbia, under the flag 
 of the U. S., Mr. Calhoun eluded the objection that the Co- 
 lumbia was not a public but a private ship, by simply observ- 
 ing — " Indeed, so conclusive is the evidence in his (Gray's) 
 favour, that it has been attempted to evade our claim on the 
 novel and wholly untenable ground that his discovery was 
 made, not in a national but private vessel ;" and so passed 
 on to other questions. Mr. Buchanan, on the other hand, 
 devotes a few lines to the subject: — "The British plenipo- 
 tentiary attempts to depreciate the value to the United States 
 of Gray's discovery, because his ship was a trading and not 
 a national vessel. As he furnishes no reason for this distinc- 
 tion, 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 co?nmissioned for 
 the express purpose of making discoveries ; besides, beyond 
 all doubt, this discovery was made by Gray ; and to what 
 nation could the benefit of it belong, unless it be to the United 
 States ? Certainly not to Great Britain ; and if to Spain, the 
 United States are now her representative. 
 
 Mr. Rush had in a similar manner maintained, " That the 
 ship of Captain Gray, whether fitted out by the Government 
 of the United States or not, was a national ship. If she was 
 not so in a technical sense of the word, she was in the full 
 sense of it, applicable to such an occasion. She bore at her 
 stern the flag of the nation, sailed forth under the protection 
 of the nation, and was to be identified with the rights of fhe 
 nation." 
 
 In both these statements it seems to be admitted, that there 
 is a technical distinction in the nationality of a public ship 
 and of a private ship; but it is maintained that ybr the pur- 
 poses of discovery a merchant ship, under the command of a 
 private individual, is, in the full sense of the word, a national 
 ship. This doctrine, however, finds no countenance in the 
 
PRACTICE OF NATIONS. 227 
 
 practice of nations, which, on the contrary, makes a broad 
 distinction between public and private vessels, in reference to 
 all territorial questions. Thus the comity of nations attaches 
 to the nationality of public vessels coming into the ports of a 
 foreign sovereign different considerations from those with 
 which it regards the nationality of private vessels. To go no 
 further than the tribunals of the United States, " a public ves- 
 sel of war, of a foreign sovereign, coming into our ports, and 
 demeaning herself in a friendly manner, is exempt from the 
 jurisdiction of this country," (The schooner Exchange v, 
 M'Faddon, 7 Cranch, 116 : Supreme Court of the United 
 States, 1812 ;) but a private merchant ship has not that cour- 
 tesy extended to it, if it ventures intra fauces terrm. For in- 
 stance, if a British merchant vessel should enter the port of 
 Charleston, with free negro sailors on board, the nationality 
 of the flag will not be sufficient to protect them from the 
 operation of the municipal law, which forbids liberty to the 
 negro within the limits of South Carolina ; and thus it re- 
 peatedly happens, that negroes or persons of colour arriving 
 in the ports of South Carolina, though free subjects of her 
 Britannic Majesty, and engaged on hoard of a British mer- 
 chant vessel in the service of the ship, have been by virtue of 
 the lex loci immediately taken from under the protectioji of the 
 British fag, and thrown into prison. In an analogous man- 
 ner, if a merchant ship from Carolina should enter the port of 
 London, with one or more negro slaves on board, the mercan- 
 tile flag of the United States would not preclude them from 
 the freedom which the soil of Great Britain imparts to all who 
 come within its precincts. 
 
 A public vessel, however, is not entitled, as a matter of right, 
 to any exemption from the jurisdiction of the sovereign whose 
 territory she enters. For the jurisdiction of every nation 
 within its own territory is exclusive and absolute, and all 
 limitations to the full and complete exercise of that jurisdic- 
 tion must be traced up to the consent of the nation itself. 
 But the comity of nations regards a public vessel as represent- 
 ing the sovereignty of the nation whose flag it bears. If it 
 therefore leaves the high seas, the common territory of all 
 nations, and enters into a friendly port, it is admitted to the 
 privileges which would be extended to the sovereign himself. 
 One sovereign, however, can only be supposed to enter a 
 foreign territory, as his sovereign rights entitle him to no 
 extra-territorial privileges, under an express licence, or in the 
 
228 DR. CHANNING ON THE FLAG. 
 
 confidence that the immunities belonging to his independent 
 sovereign station, though not expressly stipulated, are reserved 
 by implication, and will be extended to him. In a similar 
 manner it is under an implied licence that a public ship en- 
 ters the port of a friendly power, and retains its independent 
 sovereign character, by the courtesy of the nation within 
 the precincts of whose territorial jurisdiction it has placed 
 itself. A private ship, on the contrary, entering the ports of 
 a foreign power, has freedom of access allowed to it upon a 
 tacit condition of a different kind, namely, that it becomes 
 subject to the municipal laws of the country. Hence every 
 nation assigns to its mercantile marine a distinct flag from 
 that which its public ships are authorised to exhibit as the 
 credential of their representing the sovereign power of the 
 state. 
 
 This distinction between the signification of the respective 
 flags is not arbitrary, at the will of each nation, but is recog- 
 nised by the law of nations : whilst the mercantile flag im- 
 parts to the vessel which bears it a right to participate in the 
 privileges secured by commercial treaties with foreign powers, 
 the public flag of a nation communicates the full character 
 of sovereignty, and is respected accordingly. The commer- 
 cial flag thus carries with it nationality, the public flag the 
 national sovereignty. 
 
 It is as much out of the power of any particular state to 
 disturb this distinction, and to attach to its mercantile flag, 
 beyond the jurisdiction of its own territory, different consider- 
 ations from those which the practice of nations has sanc- 
 tioned, as to increase or diminish the list of offences against 
 the law of nations. No individual nation can say, " That is 
 our mercantile flag : such and such powers shall attach to it, 
 because it is our pleasure that it should be so :" on the con- 
 trary, it is the practice of nations which defines those powers, 
 and to that practice we must have recourse, if we would as- 
 certain them. 
 
 In illustration of the above views, the following extract 
 from Dr. Channing's eloquent and able pamphlet on " the 
 Duty of the Free States," will not seem out of place. It was 
 suggested by the well-known case of the Creole : — " It seems 
 to be supposed by some that there is a peculiar sacredness in 
 a vessel, which exempts it from all control in the ports of 
 other nations. A vessel is sometimes said to be ' an exten- 
 sion' of the territory to which it belongs. The nation, we 
 
"NATIONALITY OF PUBLIC SHIPS. 229 
 
 are told, is present in the vessel ; and its honour and rights 
 are involved in the treatment which its flag receives abroad. 
 These ideas are, in the main, true in regard to ships on the 
 high seas. The sea is the exclusive property of no nation. 
 It is subject to none. It is the common and equal property 
 of all. No state has jurisdiction over it. No state can write 
 its laws upon that restless surface. A ship at sea carries with 
 her, and represents, the rights of her country, rights equal to 
 those which any other enjoys. The slightest application of the 
 laws of another nation to her is to be resisted. She is sub- 
 jected to no law but that of her own country, and to the law 
 of nations, which presses equally on all states. She may 
 thus be called, with no violence to language, an extension of 
 the territory to which she belongs. But suppose her to quit 
 the open sea, and enter a port, what a change is produced in 
 her condition ! At sea she sustained the same relations to ail 
 nations — those of an equal. Now she sustains a new and pe- 
 culiar relation to the nation which she has entered. She 
 passes at once under its jurisdiction. She is subject to its 
 laws. She is entered by its officers. If a criminal flies to her 
 for shelter, he may be pursued and apprehended. If her own 
 men violate the laws of the land, they may be seized and 
 ' punished. The nation is not present in her. She has left the 
 open highway of the ocean, where all nations are equals, and 
 entered a port where one nation alone is clothed with au- 
 thority. What matters it that a vessel in the harbour of Nas- 
 sau is owned in America ? This does not change her 
 locality'. She has contracted new duties and obligations by 
 being placed under a new jurisdiction. Her relations differ 
 essentially from those which she sustained at home or on the 
 open sea. These remarks apply, of course, to merchant ves- 
 sels alone. A ship of war is an ' extension of the terHtory^ to 
 which she belongs, not only when she is on the ocean, but in 
 a foreign port. In this respect she resembles an army march- 
 ing by consent through a neutral country. Neither ship of 
 war nor army falls under the jurisdiction of foreign states. 
 Merchant vessels resemhle individuals. Both become sub- 
 ject to the laws of the land which they enter." 
 
 The taking possession of a vacant country for the purpose 
 of settlement is one of the highest acts of sovereign power, 
 for a nation thereby acquires not merely " the domain, by 
 virtue of which it has the exclusive use of the country for the 
 supply of its necessities, and may dispose of it as it thinks 
 
 II 
 
230 MR. GALLATIN ON THE FLAG. 
 
 proper, but also the empire, or the right of sovereign command, 
 by which it directs and regulates at its pleasure every thing 
 that passes in the country," (Vattel, i., § 204.) It is hardly 
 necessary to add, that a commission from the sovereign alone 
 will authorize the act of taking possession, so as to secure re- 
 spect for it, as a puhJic act, from other nations. Thus we find 
 that, in the letter from Mr. Gallatin to Mr. Astor, elsewhere 
 quoted, this principle was fully appreciated by Mr. Astor, 
 when he applied, in 1816, for a commission from the govern- 
 ment of the United States. " You mentioned to me that you 
 were disposed once more to renew the attempt, and to re- 
 establish Astoria, provided you had the protection of the Ame- 
 rican flag: for which purpose a /ieM/!e««yi/'5 command would 
 be sufficient to you. You requested me to mention this to 
 the President, which I did. Mr. Madison said, he would con- 
 sider the subject, and although he did not commit himself, I 
 thought that he received the proposal favourably." 
 
 It remains to be considered whether the practice of nations 
 has attached different considerations to the flag in respect to 
 discoveries, Discovei'ies, however, as forming the ground- 
 work of territorial title, are in themselves technical. They 
 are inchoate acts of sovereignty. "Even in newly-discovered 
 countries," said Lord Stowel, in the case of the Fama, already 
 cited, " where a title is meant to he established, for the first 
 time, some act of possession is usually done and proclaimed 
 as a notification of the fact.'' It is not, therefore, the mere 
 sight of land which constitutes a discovery, in the sense in 
 which the practice of nations respects it, as the basis of terri- 
 torial title ; there must be some formal act of taking posses- 
 sion, which, as being an act of sovereign power, can only be 
 performed through a commission from the sovereign. Thus 
 Vattel, in the passage so frequently quoted, says, '* The prac- 
 tice of nations has usually respected such a discovery, when 
 made by navigators who have been furnished with a commis^ 
 sion from their sovereign, and meeting with islands or other 
 lands in a desert state, have taken possession of them in the 
 name of the nation." 
 
 The conditional title by discovery is entirely the creature 
 of the comity of nations ; it has no foundation in the law of 
 nature, according to which, if the discoverer has not occupied 
 Ihe territory, it would be presumed to remain vacant, and open 
 to the next comer. For such purposes, however, the citizen 
 nr subject is not regarded as the instrument of his sovereign, 
 
heceta's discovery. 281 
 
 unless he bears his commission, when his acts are respected 
 as public acts, and are operative as between nation and 
 nation. 
 
 It would thus appear that the first entering of the mouth 
 of the Columbia River by Gray, being the act of a private 
 citizen, sailing in a private ship for the purposes of trade, 
 under the mercantile flag of his country, was not in the re- 
 ceived sense of the word a discovery, which, according to the 
 practice of nations, could lay the foundation of a title to terri- 
 torial sovereignty. It does not satisfy the required conditions 
 upon which alone the comity of nations would respect it. 
 When therefore Mr. Buchanan says, "Besides, beyond all 
 doubt this discovery was made by Gray, and to what nation 
 could the benefit belong, unless it be to the United States," he 
 assumes that the comity of nations will attach benefit to such 
 a discovery, contrary to the practice of nations. It is thus un- 
 necessary to decide to what nation the benefit will belong, in 
 a case in which no benefit can be held to have resulted. On 
 the other hand, it is admitted by both of the American Secre- 
 taries of State, that the discovery of the mouth of the Colum- 
 bia, in the popular sense of the word, was made by the Spanish 
 navigator Heceta, some years before Gray visited the coast. 
 It consequently follows that Gray achieved the first explora- 
 tion, and not the discovery of the mouth of the river, even in 
 the popular sense of the term. 
 
 In respect to the prior exploration of the Columbia River 
 from its head- waters, by Lewis and Clarke, in 1805-6, Mr. 
 Calhoun, having conducted the expedition, which had been de- 
 spatched under the auspices of the Government of the Unit- 
 ed States in the spring of 1804, as far as the head-waters of 
 the Missouri, states that " in the summer of 1805, they reached 
 the head-waters of the Columbia River. After crossing many 
 of the streams falling into it, they reached the Kooskooskee, 
 in lat. 43° 34', descended that to the principal northern branch, 
 which they called Lewis's ; followed that to its junction with 
 the great northern branch, which they called Clarke; and 
 thence descended to the mouth of the river, where they land- 
 ed, and encamped on the north side, on Cape Disappointment, 
 and wintered.''^ Mr. Buchanan, in referring to this part of 
 Mr. Calhoun's argument, which he did not consider it neces- 
 sary to repeat, observed that he had shown, " that Messrs. 
 Lewis and Clarke, under a commission from their Govern- 
 ment, first explored the waters of this river almost from, its 
 
232 THE NORTHERN BRANCH OF THE COLUMBIA. 
 
 head-springs io the Pacific, passing the winter of 1805 and 
 1806 on its northern shore, near the ocean." These statements 
 however do not correspond with the facts themselves which 
 they profess to represent. 
 
 Mr. Rush, in the negotiations of 1824, had set up for the 
 United Stales an exclusive claim to the whole territory be- 
 tween 42° and 61° north, on the ground that ''it had been 
 ascertained that the Columbia River extended by the River 
 Multnomah to as low as 42°, and by Clarke's River to a point 
 as high up as 51°, if not beyond that point." The obscurity 
 in which the geographical relations of the Oregon territory 
 were at that time involved, might, to a certain extent, excuse 
 the mi?. statement of Mr. Rush on this occasion, for, as already 
 observed, it has been subsequently ascertained that the source 
 of the Multnomah is in about 43° 45', and that of Clarke's 
 River, in 45° 30' ; but Mr. Calhoun's statement involves an 
 historical as well as a geographical inaccuracy, which, under 
 the circumstances, seems to have been intentionally put for- 
 ward, since it is repeated by Mr. Buchanan. It is presumed 
 that in the copy of the correspondence which has been circu- 
 lated in the public journals, and which has been published in 
 a separate form by Messrs. Wiley and Putnam of Waterloo- 
 place, there is a misprint in Mr. Calhoun's describing Lewis' 
 River as the principal northern branch, more particularly as 
 Clarke's River is immediately after spoken of as the great 
 northern branch. Lewis' River must evidently have been in- 
 tended to be described as the principal southern branch, being 
 the river on which the Shoshonee or Snake Indians fish, and 
 which the travellers reached on descending the Kooskooskee. 
 This inaccuracy may be passed over as an error of the press, 
 but in respect to the next assertion of Mr. Calhoun, that 
 Lewis and Clarke followed this river to its junction with the 
 great northern branch, which they called Clarices River, it is 
 not home out by the account which Lewis and Clarke them- 
 selves give. On Friday, Sept. 6, Captain Clarke and his 
 party reached the first river on the western side of the Rocky 
 Mountains, to which they gave the name of ClarJiC^s River, 
 (Travels, ch. xvii.,) running from south to north, and which, 
 from the account of the natives, they had reason to suppose, 
 after going as far northward as the head-waters of the Medi- 
 cine River, (a tributary of the Missouri,) turned to the west- 
 ward and joined the Tacoutche-Tesse River. It must not be 
 forgotten that the Tacoutche-Tesse, discovered by Alexander 
 
surrosED to be the tacoutciie-tesse. 233 
 
 Mackenzie in 1793, was supposed to be the northernmost 
 branch of the Columbia down to so late a period as 1812. 
 Thus Alexander von Humboldt, in his New Spain, (1. i., c. 2,) 
 writes : — " Sous les 54° 37' de latitude boreale, dans le paral- 
 lele de I'ile de la Reine Charlotte, les sources de la riviere de 
 la Paix (Peace River) ou d'Ounigigah, se rapprochent de sept 
 lieues des sources du Tacoutche-Tesse, que I'on suppose etre 
 identique avec la riviere de Colombia. La premiere de ces 
 rivieres va a la mer du Nord, apres avoir mele ses eaux a 
 celles du lac de I'Esclave et a celles du fleuve Mackenzie. 
 La seconde riviere, celle de Colombia, se jette dans I'Ocean 
 Pacitique pres du Cap Disappointment, au sud de Nootka- 
 Sound, d'apres le celebre voyageur Vancouver, sous les 46° 19' 
 de latitude." 
 
 Mr. Greenhow (p. 285) says, " Three days afterwards 
 they entered the principal southern branch of the Columbia, 
 to which they gave the name of Lewis : and in seven days 
 more they reached the point of the confluence with the larger 
 northern branchy called by them the Clarke.^^ Such, how- 
 ever, is not the account of the travellers, who state that, hav- 
 ing followed the course of the Lewis River, they reached on 
 the l6th of October its junction with the Columbia River, 
 (chap, xviii..) the course of which was " from the north- 
 west," as Captain Clarke ascertained by ascending it some 
 little distance. They nowhere, throughout the account of 
 their travels, call this main river by any other name than the 
 Columbia : they nowhere speak of it by the name of Clarke's 
 River ; it is a reflection on their memory to represent them 
 as supposing that this great northern branch was the river to 
 which they gave the name of Clarke, for they fully believed, 
 when they reached the main stream, that they had reached 
 the Tacoutche-Tesse of Mackenzie, and at the same time the 
 Columbia of Gray and Vancouver, of which they considered 
 Clarke's River to be merely a tributary. The names of Lewis 
 and Clarke are totally unconnected with the great northern 
 branch of the Columbia River, which was discovered and first 
 explored from its sources in about 52° N. L., by Mr. Thom- 
 son, the surveyor or astronomer of the North-west Company, 
 in 1811. This is an important fact, inasmuch as the exclu- 
 sive claim of the United States was advanced in 1824, to the 
 territory as far north as 51°, expressly on the ground that 
 Clarke's River extended as far north as that parallel, or even 
 beyond that point, which is not the case. This northern 
 
234 FOKT CLATSOP. 
 
 branch, down which Mr. Thomson first penetrated, is entitled 
 to be considered as the main branch of the Columbia, on the 
 well-known principle that the sources most distant from the 
 sea are regarded as the true sources of a river, according to 
 which doctrine the name of Columbia has been in practice 
 retained for this northern branch, whilst distinctive names 
 have been given to all the southern tributaries. 
 
 Mr. Calhoun continues to say, "and thence they (Lewis 
 and Clarke) descended to the mouth of the river, where they 
 landed, and encamped on the north side, on Cape Disapj)oint- 
 ment, and wintered." The meaning of this passage might be 
 doubtful, unless Mr. Buchanan had cleared it up by his ex- 
 pression of "passing the winter of 1805 and 1806 on its 
 northern shore, near the ocean." When it is remembered 
 that it is the possession of the north bank of the river which 
 is contested by the two parties to the negotiation ; and that 
 the incidents of this expedition are formally alleged, on the 
 side of the United States, as forming part of the ground- work 
 of their exclusive title, and that the British negotiators have 
 objected throughout to the alleged completeness of the title of 
 the United States, on the express ground that it is at best an 
 aggregate of imperfect titles, and that the distinction between 
 a perfect and imperfect title is not one of degree, but of kind, 
 it may not be unimportant to remark, that Lewis and Clarke 
 passed the winter of 1805-6 on the southern shore of the 
 Columbia, in an encampment on a point of high land on the 
 banks of the river Netul. It is perfectly true that, having 
 proceeded down the Columbia as far as the roughness of the 
 waves would allow them, they landed on the north side on the 
 16th of November, and encamped on the shore near a village 
 of the Chinnook Indians, just above high-water mark, where 
 Captain Clarke remained for nine days, until Captain Lewis 
 had succeeded in selecting a favourable spot for their winter's 
 encampment ; but the locality where they encamped and win- 
 tered, was on the south side of the Columbia, amongst the 
 Clatsop Indians, and from this very circumstance they gave 
 to it the name of Fort Clatsop, which is so marked down in 
 the map prefixed to the travels of Lewis and Clarke, with the 
 further designation of" The wintering post of Captains Lewis 
 and Clarke in 1805 and 1806." Had not Mr. Calhoun speci- 
 fied the locality of this winter's encampment as an element 
 of the cumulative title of the United States, and had not Mr. 
 Buchanan repeated the statement of his predecessor more ex- 
 
SETTLEMENTS OF THE UNITED STATES. 235 
 
 plicitly, it would not have been thought necessary to discuss 
 the circumstances so fully ; but as one object of this inquiry 
 is to clear up the facts of the case, which, from the nature of 
 the subject, are obscure, if this error of statement had not been 
 pointed out, it might have tended to increase the existing in- 
 tricacy of the question, more particularly when it has an offi- 
 cial character impressed upon it. It can hardly be supposed 
 to be an error of the press, since Cape Disappointment, 
 which is on the north bank, is referred to by Mr. Calhoun 
 as adjoining the spot where they " encamped and win- 
 tered," 
 
 The result of this inquiry cannot be better summed up 
 than in the words of Mr. Pakenham's counter-statement : — 
 " With respect to the expedition of Lewis and Clarke, it must, 
 on a close examination of the route pursued by them, be con- 
 fessed, that neither on their outward journey to the Pacific, 
 nor OR 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 and explored by them. 
 
 * Thomson, of the British North-west Company, was the 
 first civilised person who navigated the northern, in reality 
 the main branch of the Columbia River, or traversed any part 
 of the country drained by it. 
 
 *' It was by a tributary of the Columbia that Lewis and 
 Clarke made their way to the main stream of that river, which 
 they reached at a point distant, it is believed, not more than 
 200 miles from the point to which the river had been previ- 
 ously explored by Broughton. 
 
 <' These facts, the undersigned conceives, will be found 
 sufficient to reduce the value of Lewis and Clarke's explora- 
 tion on the Columbia to limits, which would by no means 
 justify a claim to the whole valley drained by that river and 
 its branches." 
 
 Mr. Calhoun next proceeds to state the grounds on which, 
 as alleged, priority of settlement was no less certain on the 
 side of the United States : — " Establishments were formed by 
 American citizens on the Columbia as early as 1809 and 1810. 
 In the latter j^ear a company was formed at New York, at 
 the head of which was John Jacob iistor, a wealthy mer- 
 chant of that city, the object of which was to form a regular 
 chain of establishments on the Columbia River, and the con- 
 tiguous coasts of the ^a.cifiCf for commercial purposes. Early 
 
236 MR. 
 
 in the spring of ISll, they made their first eslablishment on 
 the south side of the river, a few miles above Point George, 
 where they were visited in July following by Mr. Thomson, 
 a surveyor and astronomer of the North-west Company, and 
 his party. They had been sent out by that company to fore- 
 stall the American company in occupying the mouth of the 
 river, but found themselves defeated in their object. The 
 American company formed two other connected establish- 
 ments higher up the river : one at the confluence of the Oka- 
 negan with the north branch of the Columbia, about 600 
 miles above its mouth, and the other on the Spokan, a stream 
 falling into the north branch, some fifty miles above." 
 
 Mr. Calhoun, in making the above general allusion to 
 establishments formed in 1809 and 1810, may be supposed to 
 refer to a trading post founded by Mr. Henry, one of the 
 agents of the Missouri Fur Company, on a branch of the 
 Lewis River, the great southern arm of the Columbia. This 
 post, however, was shortly abandoned in consequence of the 
 hostility of the natives, and the difficulty of obtaining sup- 
 plies, (Greenhow, p. 292.) It would, however, be rather 
 an overstrained statement to describe this hunting station as 
 an establishment formed on the Columbia, considering its 
 very great distance from the junction of the Lewis River with 
 the Columbia. Mr. Calhoun, however, may be alluding at 
 the same time to the undertaking of Captain Smith, in the 
 Albatross, in 1810, who is said by Mr. Greenhow to have at- 
 tempted to found a trading post at Oak Point, on the south 
 side of the Columbia, about forty miles from its mouth, and 
 to have almost immediately abandoned the scheme. Such an 
 attempt, however, can hardly be entitled to the character of a 
 settlement. Beyond these two instances, it is believed that 
 there is no occasion on record of the presence of citizens of 
 the United States on the west side of the Rocky Mountains, 
 during the years of 1809-10, which could give rise to the 
 supposition of an establishment having been formed by them. 
 
 In respect, however, to Mr. Astor's Adventure, the Pacific 
 Fur Company was a mere mercantile firm, the formation of 
 which originated with Mr. Astor, a German by birth, and 
 ultimately a naturalized citizen of the United States. The 
 original company was formed in 1810, and, according to Mr. 
 Washington Irving, consisted of Mr. Astor himself, three 
 Scotchmen, who were British subjects, and one native citizen 
 of the United States. Three more Scotchmen, and two more 
 
ASTORIA :SOr A NATIONAL SETTLEMENT. 237 
 
 citizens of the United States were subsequently admitted, so 
 that the majority of the company were British subjects, and 
 they had received an express assurance from Mr. Jackson, 
 the British Minister at Washington, that " in case of a war 
 between the two nations, they would be respected as British 
 subjects and merchants,^ [Greenhow, p. 295.] Mr. Astor 
 stipulated to retain half the shares for himself, and in return 
 to bear all the losses for the first five years, during which 
 period the parties had full power to abandon and dissolve the 
 association. A detachment of the partners arrived at the 
 Columbia River in 1811, and formed a trading establishment 
 on the southern bank of the river, on Point George, not far 
 from the mouth, which they named Astoria. Mr. Washing- 
 ton Irving, who had his information from Mr. Astor himself, 
 terms their establishment "a trading house," [Chap, ix.] Not 
 long after their arrival they received information from the 
 Indians, that the North-west Company had erected a trading 
 house on the Spokan River, which falls into the north branch 
 of the Columbia, and they were preparing to dispatch a rival 
 detachment to act as a counter-check to this establishment, 
 when Mr. David Thomson, with a party under the protection 
 of the British flag, having descended the Columbia from its 
 northernmost source, arrived at Astoria. On his return Mr. 
 Stuart, one of the partners of the Pacific Fur Company, ac- 
 companied Mr. Thomson's party a considerable distance up 
 the Columbia River, and established himself for the winter at 
 the junction of the Okanegan with the Columbia, at about 
 140 miles from the Spokan River ; here Mr. Stuart, according 
 to Mr. Washington Irving, considered himself near enough 
 to keep the rival establishment in check. It would thus appear 
 that the earliest settlement on the Spokan River was made 
 by the North-west Company, and from Mr. Washington 
 Irving's account, seems almost to have preceded the founda- 
 tion of Astoria ; for whilst the Astorians were occupied with 
 their building, they heard from the Indians that white men 
 "were actually building houses at the Second Rapids." If, 
 however; it was not antecedent, it was at least contempo- 
 raneous. 
 
 It can hardly bo contended that the settlement at Astoria 
 had a definite national charR.cter, much less that it could im- 
 part the national sovereignty of the United States, to the 
 territory, wherein it was established. The Astorians might 
 perhaps maintain their claim to the domain (dominium utjle,) 
 
 11* 
 
238 THE NORTH-WEST COMPANY. 
 
 but that they should set up a titfc to the sovereignty (domi- 
 nium eminens,) or be held to convey a title to any state which 
 should choose to assert it through them, is not conformable to 
 the practice of nations. But the plenipotentiaries of the 
 United States contend that they have an exclusive title to the 
 entire valley of the Columbia, by virtue of this settlement. 
 Spain, however, did not admit this title in the negotiations 
 preceding the Florida Treaty, nor did the United States ven- 
 ture to set it up. When Don Luis d'Onis, in resuming the 
 negotiations, proposed, in his letter of January 16, 1819, 
 (British and Foreign State Papers, 1819-20, p. 565,) to con- 
 cede, on the part of his Catholic Majesty, as the boundary 
 between the two states, "a line from the source of the Mis- 
 souri, westward, to the Columbia River, and along the middle 
 thereof to the Pacific Ocean," and trusted it would be ac- 
 cepted, as presenting " the means of realizing the President's 
 great plan of extending a navigation from the Pacific to the 
 remotest points of the northern seas, and of the ocean," no 
 claim was advanced to the valley of the Columbia ; but Mr. 
 Adams briefly stated, in reply, that " the proposal to draw the 
 western boundary line between the United States and the 
 Spanish territories on this continent, from the source of the 
 Missouri to the Columbia River, cannot be admitted." Again, 
 when the Spanish commissioner, in his letter of February 1, 
 1819, stated that, "considering the motive for declining my 
 proposal of extending the boundary line from the Missouri to 
 the Columbia, and along that river to the Pacific, appears to 
 be the wish of the President to include within the limits of 
 the Union all the branches and rivers emptying into the said 
 River Columbia," and proposed to draw the boundary along 
 the River S. Clemente, or Multnomah, to the sea; and de- 
 livered a project of a treaty, in which it was stipulated that 
 his Catholic Majesty should cede all the country belonging to 
 him eastward of the boundary line to the United States ; no 
 original title to the entire valley of the Columbia, no claim to 
 the settlement of Astoria, as a national settlement, was ad- 
 vanced by the United States : yet Astoria was on the western 
 side of the Multnomah or Willamette River, as it is now 
 called, and was assumed in both the above proposals to be 
 beyond the limits of " the dominions of the Repui)lic." 
 
 Astoria passed into the hands of the North-west Company 
 by peaceable transfer. It was sold by the partners resident in 
 the establishment, after they had dissolved the association, 
 
THE UNITED STATES IN POSSESSION OF ASTORIA. 239 
 
 which, by the terms of the contract, the parties had power to 
 do. Wheu Captain Black, in his Britannic Majesty's sloop- 
 of-war the Racoon, arrived there in 1813, he did not capture 
 Astoria, for it was not the property of an enemy, but he took 
 possession of it in the name of his Britannic Majesty, and 
 hoisted the British ensign ; thereby formally asserting the 
 sovereignty of Great Britain over the property of British 
 subjects. In 1818, the government of the United States was 
 formally placed in possession of Astoria ; and this was the 
 first occasion on which an act of sovereignty was exercised 
 by that Power. Mr. Calhoun states that this act " placed 
 our possession where it was before it passed into the hands of 
 British subjects." On the contrary, it placed Astoria in the 
 hands of the government of the United States, in which hands 
 it had never been before : for, antecedently to the transfer to 
 the North-west Company by purchase, it was in the hands of 
 an association, the majority of which were British subjects, 
 who could not, according to any received principle of inter- 
 national law, be held to have represented the sovereignty of 
 the United States. 
 
 It was admitted by Lord Castlereagh, in the discussions 
 with Mr. Rush antecedent to the restoration of Astoria, that 
 the United States were entitled to be reinstated there, and 
 ** to be the party in possession ivhilst treating of the title,'''' 
 At that time the United States had confined their claims to 
 the restitution of a post, which, as they asserted, " had been 
 established by tliem on the Columbia River, and had been 
 taken during the war, and consequently came within the pro- 
 visions of the first article of the Treaty of Ghent." Mr. 
 Bagot, in his reply to Mr. Adams, of 26th November, 1817, 
 (British and Foreign State Papers, 1821-22, p. 461,) stated 
 that, " from the reports made to him, it appeared that the post 
 had not been captured during the late war, but that the Ame- 
 ricans had retired from it under an agreement made with the 
 North-west Company, who had purchased their effects, and 
 who had ever since retained peaceable possession of the 
 coast." The whole discussion was thus evidently limited to 
 the settlement at Astoria ; and Lord Castlereagh admitted, on 
 the statement of the United States, that they had a prima 
 facie claim to be reinstated in the post, in conformity to the 
 provisions of the treaty, and to he the party in possession 
 whilst treating of the title. 
 
 Mr. Calhoun, in the further course of his argument, con- 
 
240 Mli. CALUOUn's ARGU.'llliAT. 
 
 tends that, after this admission on I ho part of Lord Castle- 
 reagh, the Convention of 1818 "preserved and perj)ctuated 
 all our claims to the territory^ incki(Hng the acknowIed<2;cd 
 right to be considered the party in jjossession ;" and Mr. Bu- 
 chanan, in still more exphcit language, maintains the same 
 position. " He claims, and he thinks he has shown, a clear 
 title, on the part of the United States, to the whole region 
 drained hy the Columbia, with the right of being reinstated, 
 and considered the party in possession whilst treating of the 
 title ; in which character he must insist on their being con- 
 sidered, in conformity with posilice rjaty stipulations. He 
 cannot, therefore, consent that they shall be regarded, during 
 the negotiations, merely as occupanls in common with Great 
 Britain. Nor can he, while thus regarding their rights, pre- 
 sent a counter-proposal, based on tiie su|)position of joint oc- 
 cupancy merely, until the question of title to the territory is 
 fully discussed." This argunuMit is essentially unsound 
 throughout. The title of the United States to possess the 
 settlement, in other words, not to be excluded from the terri- 
 tory^ is strangely confounded with the title to exclude the Bri- 
 tish from the entire territory. These titles are assumed 
 to be identical, being most distinct. Great Britain does not 
 require to be considered as an occupant in common of Astoria. 
 The United States were never admitted by positive treaty stipu- 
 lations to be the party entitled to be considered in j^ossession 
 of the whole region of the Columhia, which Mr. Buchanan 
 maintains to have been conceded by Lord Castlereagh. But 
 Great Britain does require to be considered as an occupant in 
 common of the region of the Columbia^ and the United States 
 is entitled to the right of adverse possession as far as the 
 settlement at the mouth of the river, on its south bank is con- 
 cerned. What, however, is the etfect of such a right of pos- 
 session ? Simply that, as far as the settlement of Astoria is 
 concerned, it is not necessary for the United States to prove 
 its right of dominion. Its right of possession is a valid right, 
 unless a right of dominion can be established by some other 
 Power. But Great Britain asserts no right of dominion, — she 
 does not claim to evict the United States from its actual pos- 
 session, — but, as she claims no exclusive title for herself, so 
 she recognises no exclusive title in any other Power. The 
 principle of a mutual right of occupancy of the territory was 
 admitted, when it was agreed that the United States should 
 be placed in possession sub modo, whilst treating of the title. 
 
POSSESSION SUB 3I0D0. 241 
 
 The question, however, between the two governments was not 
 one of law, bat oi^ fact. Issue had been joined in the pre- 
 vious letters between the Secretary of State and the Minister 
 of Great Britain, at Washington : whilst the former asserted 
 Astoria had been captured during the war, the latter main- 
 tained that it had passed into the hands of the North-west 
 Company by peaceable purchase. 
 
 The United States asserted that Astoria had become a Bri- 
 tish possession by virtue of the/w5 belli^ the operation of which 
 was in this case expressly suspended by the first article of the 
 Treaty of Ghent : on this plea they claimed that it should be 
 restored to them. Great Britain, on the other hand, maintain- 
 ed that it had passed into the hands of the North-west Com- 
 pany by peaceable purchase : on this plea they contended 
 that the United States were not entitled to demand its restora- 
 tion. When, therefore, the United States acquiesced in the 
 proposal of Lord Castlereagh, they admitted the legal effect of 
 the fact asserted by Great Britain, if it could be substantiated. 
 They thus admitted the common right of Great Britain to form 
 settlements, by agreeing to treat of the title on the ground al- 
 leged by Great Britain, precisely as Great Britain admitted a 
 corresponding right in the United States, by agreeing to dis- 
 cuss the alleged fact that Astoria had passed into the hands 
 of the British jwre belli, by which it was implied that it had 
 been antecedently a possession of the United States. We 
 thus find in the negotiations of 1818, which terminated in the 
 Convention of the 20th October, concluded fourteen days af- 
 ter the actual restoration of Astoria, that Messrs. Gallatin and 
 Rush nowhere hint at an exclusive title in the United States. 
 " We did not assert,'' they say in their letter to Mr. Adams, of 
 October 20, 1818, " that the United States had ii perfect right 
 to that country, but insisted that their claim was at least good 
 against Great Britain," (British and Foreign State Papers, 
 1819-20, p. 169.) Yet, in the face of this solemn admission, 
 at the commencement of the earliest negotiations, and of the 
 fact that the title has been treated of on so many occasions, 
 Mr. Buchanan now asserts that " our own American title to 
 the extent of the valley of the Columbia, resting as it does on 
 discovery, exploration, and possession — a possession acknow- 
 ledged by a most solemn act of the British government itself, 
 is a sufficient assurance against all mankind; whilst our su- 
 j)eradded title derived from Spain extends our exclusive rights 
 over the whole territory in dispute against Great Britain." 
 
242 MR. Buchanan's assertion. 
 
 Such is the outline of the grounds on which the United 
 States set up an exclusive title to the entire valley of the Co- 
 lumbia, that is, a title to exclude Great Britain from making 
 settlements there. Mr. Buchanan observes, that this title is 
 "older than the Florida Treaty of February 1819, under 
 which the United States acquired all the right of Spain to the 
 north-west coast of America, and exists independently of its 
 provisions. Even supposing, then, that the British construc- 
 tion of the Nootka Sound Convention was correct, it could not 
 apply to this portion of the territory in dispute. A convention 
 between Great Britain and Spain, originating from a dispute 
 concerning a petty trading establishment at Nootka Sound, 
 could not abridge the rights of other nations. Both in public 
 and private law, an agreement between two parties can never 
 bind a third, without his consent, expressed or implied." 
 
 Mr. Buchanan thus appears disposed to renounce the deri- 
 vative title of Spain, upon which, as completing the defects in 
 the original title of the United States, considerable stress had 
 been elsewhere laid, " supposing the British construction of 
 the Nootka Convention to be correct :" in other words the 
 commissioners of the United States claim to avail themselves 
 of the provisions of this convention, if they can be made to 
 support their title, but to repudiate them, if they should be found 
 to invalidate it, which of course is inadmissible. But when 
 Mr. Buchanan says, " A convention between Great Britain 
 and Spain could not abridge the rights of other nations,''^ though 
 the proposition be abstractedly true, yet on this occasion it 
 does not apply. First of all, because Great Britain, in recog- 
 nising the right of Spain to make settlements on the north- 
 west coast in places not yet occupied, did not either at the 
 time of the convention, or subsequently, recognise such a right 
 as an exclusive right in respect to other nations. Secondly, 
 because Spain, in recognising the right of Great Britain to 
 make settlements in an analogous manner, did not thereby 
 declare other nations excluded from making settlements ; in 
 fact, there is not a single word within " the four corners" 
 of the treaty, which can be held to abridge the rights of other 
 nations. Thirdly, because the United States, at the time 
 when the convention was concluded, had no other right than 
 that of making settlements, which Great Britain has never 
 once maintained that the Nootka Convention abridged, nor 
 does it at this moment contend so. 
 
 If, on the other hand, the United States had an exclusive ti- 
 
MR. Calhoun's admission. 243 
 
 tie to the valley of the Columbia before the Treaty of Florida, 
 or in other words, as asserted in 1324, to the entire territory 
 between 51° and 42°, and that title existed independently 
 of its provisions, it is difficult to understand the object of the 
 protracted negotiations between Don Luis de Onis and Mr. 
 Adams, which resulted in his Catholic Majesty first withdraw- 
 ing from the Rocky Mountains to the Columbia River, then 
 from the Columbia to the Multnomah or Willamette River, and 
 finally ceding all his rights, claims, and pretensions to the ter- 
 ritory north of the parallel of 42°. Mr. Buchanan's position is 
 untenable in the face of the negotiations antecedent to the 
 Florida Treaty. 
 
 The original title, however, of the United States, does not 
 satisfy the requirements of the law of nations, in the extent in 
 which it is maintained to be effective. Let it be kept in mind 
 that Great Britain has never claimed the exclusive privilege of 
 settling on the north-west coast of America, to the north of the 
 parts occupied by Spain, but she maintains her right not to be 
 excluded from any places not already occupied. The United 
 States, on the other hand, are not satisfied with claiming a 
 right to make settlements, but they assert a right to exclude 
 Great Britain from making settlements, and this, too, by virtue 
 of an act performed by a private citizen, without any commis- 
 sion from the state, subsequent to the time when the right of 
 Great Britain to make settlements had been formally recog- 
 nised by Spain in a solemn treaty, and was thus imtent to the 
 civilised world. 
 
 This very act, however, Mr. Calhoun admits to be defective 
 for the purpose cf establishing an exclusive title, when he 
 says, *' Time, indeed, so far from impairing our claims, has 
 greatly strengthened them since that period, for since then the 
 Treaty of Florida transferred to us all the rights, claims, and 
 pretensions of Spain to the whole territory, as has been stated. 
 In consequence of this, our claims to the portion drained by 
 the Columbia River — the point now the subject of considera- 
 tion — have been much strengthened by giving us the incontest- 
 able claim to the discovery of the river by Heceta above 
 stated." 
 
 It is thus admitted, that the first entering of the River Co- 
 lumbia by Gray, was not a discovery.^ but an exploration. 
 There can be no second discovery for the purpose of founding 
 an exclusive title. Heceta's discovery is incontestable for 
 the purpose of barring any subsequent claim by discovery, and 
 
244 IMPEKFECT TITLE OF SPAIN. 
 
 the original title of the United States, resolves itself into a 
 title founded upon the first exploration of the entrance of the 
 Columbia from the sea, and on the first exploration of its 
 southern branches from the Rocky Mountains. Such a title, 
 however, can neither from the nature of things, nor the prac- 
 tice of nations, establish a right to cxchide all other nations 
 from every part of the entire valley of the Columbia. On 
 the contrary, the assertion of such a ri<;ht is altogether at va- 
 riance with the comity of nations, on which alone title by dis- 
 covery rests. For, if the United States maintain that the dis- 
 covery of the Columbia River, for the purpose of estabhshing 
 a territorial title, dates from the enterprise of Gray, they set 
 aside the discovery of Heceta, in opposition to the comity of 
 nations ; yet it is upon this very comity of nations that they 
 must rely to obtain respect for their own asserted discovery. 
 
 But when Mr. Calhoun maintains that, by the Florida 
 Treaty, the title of the United States was much slrcngthcned 
 by the acquisition of the incontestable claim to the discovery 
 of the river by Heceta, he admits that the title of the United 
 States was an imperfect title before that treaty ; for a perfect 
 title is incapable of being strengthened, — exclusiveness does 
 not admit of degree. That the title of the United States to 
 form settlements in the parts not occupied was strengthened 
 by the Florida Treaty, is perfectly true. Great Britain, be- 
 fore that treaty, might have refused to recognise any title in 
 the United States under the general law of nations ; but after 
 that tre Jy, she would be precluded by the provisions of the 
 Nootka Sound Convention, as the United States would thence- 
 forward represent Spain, and allege a recognised right of mak- 
 ing settlements under that convention ; but, that the original 
 title of the United States, which was not an exclusive title by 
 the law of nations, could become an exclusive title against 
 Great Britain by the acquisition of the title of Sj)ain, which 
 was expressly not exclusive under a treaty concluded with 
 Great Britain, independently of other considerations which 
 were duly weighed at the conclusion of the Nootka Conven- 
 tion, requires only to be stated in plain language to carry with 
 it its own refutation. 
 
 The efliccts of the Nootka Convention, or rather Conven- 
 tion of the Escurial, have already been discussed in the two 
 preceding chapters. Mr. Buchanan, in his letter of July 12, 
 1845, says, " Its most important article (the third) does not 
 even grant in affirmative terms the right to the contracting par- 
 
MR. Buchanan's state3ient. 245 
 
 ties to trade with the Indians and to make settlements. It 
 merely engages in negative terms, that the subjects of the 
 contracting parties * shall not be disturbed or molested' in the 
 exercise of these treaty-privileges.^' Surely there is a contra- 
 diction of ideas in the above passages. How can the right to 
 trade with the Indians and to make settlements be termed a 
 ireafy-privilege in the latter sentence, M^hen in the former 
 sentence it is expressly denied to have been granted by the 
 treaty ? Mr. Buchanan, however, in asserting that the third 
 article did not grant in affirmative terms the right specified in 
 it, adopts precisely the same view that the British commis- 
 sioners have throughout maintained ; namely, that the third 
 article did not contain a grants but a mutual acknowledgment 
 of certain rights in the two contracting parties, with respect 
 to those parts of the north-western coast of America not al- 
 ready occupied. Mr. Buchanan, however, in a subsequent 
 letter says, " The Nootka Convention is arbitrary and artifi- 
 cial 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 acknow- 
 ledges 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 pre- 
 viously 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^ hut scattered 
 settlements, intermingled with each other, over the whole sur- 
 face of the territory, for the single jjurpose 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 inter- 
 national law,' so sacred and so perpetual as not to be annulled 
 by war. On the contrary, from the character of its provisions, 
 it cannot be supposed for a single moment that it was intend- 
 
240 TERRITORIAL RIGHTS. 
 
 ed for any purpose but that of a mere iemjwrary arrangement 
 betNVeen Great Britain and »Hpain. The laic of nations recog- 
 nises no such principles, in regard to unappropriated territory, 
 as those embraced in this treaty, and the British plenipoten- 
 tiary must fail in the attempt to prove that it contains ' an 
 admission of certain principles of international law' which 
 v/ill survive the shock of war." 
 
 Almost all the topics in the above passage have been al- 
 ready discussed in the two previous chapters, as they were 
 very dextrously urged by the commissioners of the United 
 States in the course of the previous negotiations ; so that a 
 detailed examination of them on this occasion will not be re- 
 quisite. The first article, however, does contain an acknow- 
 lodgment of previously subsisting territorial rights, for it was 
 agreed that " the buildings and tracts of land, of which the 
 subjects of his Britannic Majesty were dispossessed, about 
 the month of April 1789, by a Spanish officer, shall be restored 
 to the said British subjects." This article of the treaty, when 
 placed side by side with the declaration on the part of his 
 Catholic Majesty of an exclusive right of forming establish- 
 ments at the port of Nootka, and with the counter-declaration 
 on the part of his Britannic Majesty of his right to such es- 
 tablishments as his subjects might have formed, or should be 
 desirous of forming in future, at the said bay of Nootka, can- 
 not be held to contain an acknowledgment on the part of 
 Spain of a previously subsisting territorial right in Great 
 Britain. In respect to its provisions for the future, and to the 
 interpretation which the commissioners of the United States 
 have sought to affix to the word " settlement," namely, that 
 mere trading posts or factories were contemplated, it has been 
 shown in the previous chapters, that, from the language of 
 the treaty itself, in which the word "settlements" is, in three 
 other places, employed to designate territorial possessions, and 
 from the general language of treaties, such as the Treaty of 
 Paris in 1763, as contrasted with the Treaty of London in 
 1815, such a view is quite incapable of being satisfactorily 
 established : on the contrary, it is by implication refuted by 
 the very stipulations in the fifth article, for free access and 
 unmolested trade with these very settlements. Again, the 
 character of the provisions of the convention is alleged to 
 evince the intention of its being a mere temporary arrange- 
 ment. Such, however, was not the opinion of Mr. Fox, in 
 respect to the sixth article, when he charged the British Min- 
 
DEBATES IN THE BRITISH PARLIAMENT. 247 
 
 ister with having renounced the previous rights of Great Brit- 
 ain to plant colonies in the unoccupied parts of South America ; 
 nor of Mr. Stanley, in reference to the third article, when he 
 said, " The southern fisheries will now be prosecuted in peace 
 and security ;" nor of the Duke of Montrose, when he said, 
 •' The great question of the southern fishery is finally estab- 
 lished, on such grounds as must prevent all future dispute ;" 
 nor of Mr. Pitt, when he said, that " it was evident that no 
 claim (of Spain's) had been conceded,— that our right to the 
 fisheries had been acknowledged, — and that satisfaction had 
 been obtained for the insult offered to the Crown," (Hansard's 
 Parliamentary History, vol. xxviii., p. 970 ;) or, as otherwise 
 reported, " the claims of Spain had been receded from, and 
 every thing stated in the royal message had been gained," 
 (Gentleman's Magazine, vol. Ixx., a. d.. 1790, part ii., p. 1160.) 
 Mr. Fox's chief cause of complaint against the treaty was, 
 that it was a treaty of concessions on the part of Great Britain, 
 and not of acquisitions : and when Mr. Grey, in taunting the 
 Minister, complained, as instanced by Mr. Buchanan, " that 
 where we might form a settlement on one hill, the Spaniards 
 might erect a fort upon another," he in fact complained, not 
 that we had not maintained a right to form territorial settle- 
 ments, and to exercise acts of sovereignty in them, but that 
 we had not asserted this right so as to exclude the Spaniards 
 entirely from the country. Reference has been made to these 
 debates in the British Houses of Parliament, rather to illus- 
 trate than to prove the fact of the treaty having been regard- 
 ed in a very different light from a mere temporary engage- 
 ment, by those who contended that Great Britain had conced- 
 ed more advantages than she had acquired. Mr. Pitt, indeed, 
 denied Mr. Fox's positions, and in answer to them maintained, 
 '* that though what this country had gained consisted not of 
 new rights, it certainly did of new advantages. We had be- 
 fore a right to the Southern Whale Fishery, and a right to 
 navigate and carry on fisheries in the Pacific Ocean, and to 
 trade on the coasts of any part of it north-west of America : 
 but that right not only had not been acknowledged, but dis- 
 puted and resisted : whereas, by the convention, it was secured 
 to us — a circumstance, which, though no new right, was a new 
 advantage.^'' That the condition of intermixed settlements, 
 in regard to unappropriated lands, is clearly recognised by the 
 law of nations, as consistent with the full and absolute inde- 
 pendence of two separate nations, has been already shown by 
 
248 MR. PITT S DECLARATIOJf. 
 
 reference to acknowledged authorities on international law, 
 so that Mr. Buchanan's entire argument appears to have been 
 advanced rather upon specious than solid grounds. 
 
 There are several other arguments in the correspondence 
 of the Commissioners of the United States that might deserve 
 attention, were it not that the discussion would exceed the 
 contemplated limits of this work, which has probably already 
 attained too large a bulk. It has, however, been found im- 
 possible to compress the inquiry within narrower bounds, 
 without incurring the double risk, on the one hand, of ap- 
 pearing to those who are imperfectly informed on the subject, 
 not to have given sufficient consideration to the arguments 
 of the Commissioners of the United States, — and, on the other 
 hand, of causing to those who are well acquainted with the 
 facts, some dissatisfaction by too cursory an exposure of the 
 unsoundness of those arguments. Besides, the course adopted 
 has been thought to be well warranted by the importance of 
 the question, and to be at the same time more consistent 
 with the respect due to the distinguished negotiators. 
 
249 
 
 CHAPTER XVIII. 
 
 REVIEW OF THE GENERAL QUESTION. 
 
 Presumption in Favour of the Common Right of Great Britain. — No 
 exclusive Rights in Spain or the United States. — Convention of 1818. — . 
 Convention of 1827. — Mr. Rush's Admission in 18*24, that the United 
 States had not a perfect Right. — Cession of Astoria. — Course of the 
 Negotiations —Messrs. Rush and Gallatin in 1818.— Mr. Rush in 1824. 
 —Mr. Gallatin in 182G.— Negotiations of 1844-5.— Mr. Buchanan's 
 Offer — Mr. President Polk's Message to Congress. — Consequences 
 involved in the two Proposals. — Valueless character of the Country 
 north of 49°. — Consequences of the Convention of 1827 being abrogat- 
 ed. — Present condition of the Northern and Southern Banks of the 
 Oregon. — Voyages of British Subjects: — Drake, — Cook, — Vancouver. 
 — Settlements of Great Britain. — Settlements of the United States. — 
 Rule of Partition advanced by the United States in their Negotiations 
 with Spain. — Its Application to the present Question. — Objections to 
 it. — Mr. Pakenham's Letter of Sept. 12, l844. — Suggestion as to a fur- 
 ther Proposal on the Part of Great Britain. — Mr. VVebster's Anticipa- 
 tions of the future Destinies of Oregon. — Mr. Calhoun's Declaration in 
 1843. 
 
 The failure on the part of the United States to make out 
 their exclusive claim estabHshes at once a concki.sive inference 
 in favour of the common title of Great Britain. The proof 
 required in the two cases is essentially distinct. Where two 
 nations are already settled in a country, the onus probandi 
 rests with the party that seeks to exclude the other. Inde- 
 pendent of the presumption from inference, Great Britain has 
 conclusive jjrimd facie evidence of a right to form settlements 
 in the country ; first, in the recognition of this right by a 
 Power which had asserted an exclusive title to the entire 
 country under the guarantee of the Treaty of Utrecht, to 
 which all the great colonial Powers in America were parties, 
 but which ultimately abandoned it by the signature of the 
 Convention of the Escurial : secondly, in the undisturbed 
 enjoyment of this right during a period which, according to 
 the Civil Law, to which all civilised nations agree in appeal- 
 ing for the arbitration of public differences between one nation 
 and another, from the ncce.ssity of some common standard, 
 
250 PRESUMPTION OP A COMMON RIGHT. 
 
 constitutes a valid prescription, such as was recognised in the 
 case of Russia by the United States in 1824, and by Great 
 Britain in 1825 ; thirdly, in the partition having been the 
 subject of repeated negotiations, and more especially from the 
 proposals to negotiate both in 1824 and 1826 having origi- 
 nated with the United States, which thereby admitted the 
 claims of Great Britain to be similar in hind with their own, 
 though they might maintain them to be different in degree. 
 
 It seems to have been contended by the commissioners of 
 the United States in the course of the last negotiation, that 
 " whilst the proper title of the United States gave them exclu- 
 sive rights against all mankind, the swperaddition of the 
 Spanish title extended their exclusive right as against Great 
 Britain," (Letter of Mr. Buchanan, July 12, 1845.) The 
 enjoyment, however, of the territory by Great Britain was 
 antecedent to the proper title of the United States, whereas 
 the possession of the United States can be accounted for con- 
 sistently with the continuance of the common right of Great 
 Britain, which she claims by virtue of a title antecedent to 
 such possession. But if the superadded Spanish title con- 
 ferred an extension of exclusive rights on the United States, 
 it must have been proprio vigore an exclusive title ; and if so, 
 valid against the United States themselves : so that, on that 
 supposition, the proper right of the United States could not 
 be an exclusive right. There cannot be two exclusive titles 
 in different nations to the same country, and Great Britain 
 would be expressly debarred by the provisions of the Conven- 
 tion of the Escurial from recognising an exclusive title in the 
 United States, antecedent to their acquisition of the Spanish 
 title by the Treaty of Florida, because she had recognised in 
 1790 the right of Spain, in common with herself, to settle m 
 any places of the north-west coast of America not as yet 
 occupied : whilst she could not recognise the pights which 
 devolved to the United States from Spain, in 1819, as exclu- 
 sive rights, in the face of her previous admission that the 
 United States were entitled to be considered as the party in 
 possession of Astoria whilst treating of the title, and in con- 
 travention to the third article of the Convention of 1818, which 
 was grounded upon the basis of both the United States and 
 Great Britain, as well as other Powers, having at that time 
 claims to the country. In fact. Great Britain had acknow- 
 ledged the common title of Spain before the time when the 
 United States assert their own exclusive title to have com- 
 
CONVENTION OF 1818. 251 
 
 menced ; and she had acknowledged the common title of the 
 United States, pending the continuance of the recognised 
 title of Spain : so that she is precluded from recognising the 
 title of either state to be an exclusive one, if she were even 
 disposed to do so, by her own previous acts. 
 
 On the other hand, the United States themselves are pre- 
 cluded by their own previous acts from setting up either their 
 own original title, or their derivative title from Spain, as an 
 exclusive title. 
 
 By the convention, signed at London, of October 20, 1818, 
 it was agreed in the third article, " 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 the rivers 
 within the same, be free and open for the term of ten years 
 from the date of the present convention, to the vessels, citi- 
 zens, and subjects of the two Powers ; it being well under- 
 stood that this agreement is not to be construed to the preju- 
 dice of any claim which either of the two contracting parties 
 may Imve 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 difTer- 
 ences among themselves. ^^ 
 
 This article, in its very terms, implies the renunciation by 
 both parties of an exclusive right to the entire territory, not 
 merely in reference to each other, but still further in reference 
 to other Powers. 
 
 By the convention, signed at London, of August 6, 1827, 
 all the provisions of the third article of the Convention of 
 1818 were indefinitely extended, subject to abrogation, at the 
 option of either party, upon twelve months' notice ; and by 
 the third article it was stipulated, that " nothing contained in 
 this convention, or in the third article of the convention of 
 the 20th October, 1818, hereby continued in force, shall be 
 construed to impair, or in any manner affect, the claims which 
 either party may have to any part of the country westward of 
 the Stony or Rocky Mountains." 
 
 What those claims were on the part of the United States 
 at the time of the Convention of 1818, was explicitly stated 
 by Messrs. Gallatin and Rush, the Commissioners of the 
 United States, before it was concluded. In their letter to 
 Mr. Adams, of October 20, 1818, which commences with 
 
252 SfATUS ANTE BELLUM. 
 
 these words, '* We have the honour to transmit a convention, 
 which we concluded this day with the British plenipotentia- 
 ries," they state in reference to the negotiations, " We did not 
 assert that the United States had a perfect right to that coun- 
 try, (i.e., the country westward of the Stony Mountains,) but 
 insisted that their claim was at least good against Britain." 
 In other words, the plenipotentiaries on the part of the United 
 States, at the first opening of the negotiations respecting the 
 definitive adjustment of the mutual claims of the two parties 
 westward of the Rocky Mountains which has been a subject 
 of subsequent negotiation on three separate occasions, limited 
 their claims expressly to an imperfect right, — a right in com- 
 mon with Great Britain. They had already, in assenting to 
 be placed in possession of Astoria " whilst treating of the 
 title," according to Lord Castlereagh's agreement, as recorded 
 by Mr. Rush, admitted the common right of Great Britain to 
 possess settlements in that country. The United States had 
 contended that Astoria had become a British possession jwre 
 helli^ and Great Britain had covenanted by the first article of 
 the Treaty of Ghent to restore ^11 her acquisitions made^'wre 
 helli. Great Britain, on the contrary, had maintained that 
 Astoria had passed into the hands of the North-west Company 
 by peaceable transfer. In agreeing then to treat of the title, 
 the two parties agreed to discuss these two facts, the former 
 implying the common right of the United States to make 
 settlements, the latter, the common right of Great Brit- 
 ain. It was idle to enter into an inquiry into the respec- 
 tive truth of the alleged facts, unless it followed that the title 
 of the party that could substantiate its statement would 
 thereby be at once established. This however, implied a 
 possibility on either side of a rightful title, on the side of the 
 United States by the Treaty of Ghent, on the side of Great 
 Britain by the Law of Nations. The United States relied 
 upon the status ante helium, the lawfulness of which, in this 
 particular case, was admitted by Great Britain's consentmg 
 to entertain such a title ; Great Britain rested on the received 
 principles of international law, according to which her sub- 
 jects, in common with those of other states, were entitled to 
 make peaceable acquisitions in such parts of the north-west 
 coast as were not yet occupied by any other civilised nation, 
 which the United States could not gainsay. After the con- 
 sent of both sides to treat of the title upon this footing, it is 
 out of the question to suppose that it is competent for either 
 
COURSE OP THE NEGOTIATIONS. 253 
 
 party on the renewal of negotiations to set up an exclusive 
 title : such a proceeding would be essentially aggressive in its 
 character, and would be altogether inconsistent with the tacit 
 admission on both sides, when they agreed to entertain the 
 consideration of each other's title. 
 
 Let us now proceed to examine what has been the conduct 
 of the two parties throughout the course of the various nego- 
 tiations. 
 
 It having been expressly stated in 1818, by Messrs. Rush 
 and Gallatin, that the United States did not assert a perfect 
 right to the country^ Mr. Rush, in his letter to Mr. Adams, 
 proceeds to state, that " when the plenipotentiaries of the 
 United States, on their part, stated, 'that there was no reason 
 why, if the two countries extended their claims westward, the 
 boundary limit of the 49th parallel of north latitude should not 
 he continued to the Pacific Ocean,''^ the British commissioners, 
 though they made no formal proposition for a boundary, inti- 
 mated that the river itself was the most convenient that could* 
 be adopted, and that they would not agree to any that did not 
 give them the harbour of the mouth of the river, in common 
 iviih the United States. 
 
 The history of the subsequent negotiations will show t >at 
 on each occasion the United States have increased their 
 claims and reduced their concessions, while Great Britain has 
 not only not increased her claims, but on the contrary has 
 advanced in her concessions. 
 
 Thus, in 1824, Mr. Rush commenced the negotiation by 
 claiming for the United States, '*in their own right, and as 
 their absolute and exclusive sovereignty and dominion, the 
 whole of the country west of the Rocky Mountains, from the 
 42d to at least as far up as the 51st degree of north latitude.'* 
 He further said, that " in the opinion of my government, the 
 title of the United States to the whole of that coast, from lati- 
 tude 42° to as far north as 60°, was superior to that of Britain 
 or any other Power : first, through the proper claim of the 
 United States by discovery and settlement ; and secondly, as 
 now standing in the place of Spain, and holding in their hands 
 her title." 
 
 In accordance with these views, Mr. Rush annexed to the 
 Protocol of the 12th Conference a formal proposal, that 
 Great Britain should stipulate that her subjects should make 
 no settlement on the north-west coast of America, or the is- 
 lands adjoining^ south of the 51st degree of latitude ; the 
 
 12 
 
254 MR. rush's proposal. 
 
 United States stipulating, that none should be made by her 
 citizens north of the olst degree. The British negotiators in 
 reply proposed to accede to a line along the 49th parallel of 
 north latitude as far as the north-easternmost branch of the 
 Columbia, and thence down the middle of that river to the 
 sea, the navigation of the river to be for ever free to both 
 parties. The commisioner of the United States, on the other 
 hand, would only vary his proposed line to the south, so as 
 to consent that it should be the 49th instead of the 51st de- 
 gree of north latitude, which was the original proposal in 1818, 
 with the navigation of the river free to both parties. 
 
 On the negotiations being resumed in 1826, Mr. Gallatin, 
 on the part of the United States, having set up a new ground 
 of title founded on the acquisition of Louisiana from France 
 in 1803, and its contiguity through the intervening chain of 
 the Rocky Mountains to the territory under discussion, limit- 
 ed his olier to the 49th parallel with the navigation of the 
 civer free to both parties, as before, whilst the British com- 
 missioners expressed their willingness to yield to the United 
 States, in addition to what they first offered, a detached ter- 
 ritory extending, on the Pacific and the Strait of Fuca, 
 from Bullfinch's Harbour to Hood's Canal, and to stipulate 
 that no works should at any time be erected at the mouth 
 or on the banks of the Columbia, calculated to impede the 
 free navigation of that river by either party. 
 
 This last stipulation was evidently adapted to obviate a 
 difficulty which Mr. Prevost, the agent of the United States 
 at the restoration of Astoria, had suggested to the United 
 States Government as early as Nov. 11, 1818, in his report 
 upon the Columbia River : — "In addition to this, it is suscept- 
 ible of entire defence, because a ship, after passing the bar, 
 in order to avoid the breaking of the sea on one of the banks, 
 is obliged to bear up directly for the knoll forming the cape, 
 at all times, to approach within a short distance of its base, 
 and most frequently there to anchor. Thus a small battery 
 erected on this point, in conjunction with the surges on the 
 opposite side, would so endanger the approach as to deter an 
 enemy, however hardy, from the attempt." (British and 
 Foreign State Papers, 1821-22, p. 4G7.) 
 
 In the negotiations of 1844-5, lately brought to a close, 
 Mr. Pakenham, the British plenipotentiary at a very early 
 period, proposed in a letter of Aug. 26, 1844, in addition to 
 what had been already ofTered on the part of the United 
 
255 
 
 States, and in proof of the earnest desire of her Britannic 
 Majesty's Government to arrive at an arrangement suitable 
 to the interests 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 main- 
 land, or on Vancouver's Island, south of 49° ; and on Mr. 
 Calhoun's declining to make any counter-proposal, based on 
 the supposition of the United States and Great Britain being 
 occupants in common, Mr. Pakenham suggested " an ar- 
 bitration, to the result of which both parties should be bound 
 to conform by the interchange of notes, as the most fair and 
 honourable mode of settling the question," which Mr. Calhoun 
 declined. Mr. Buchanan, on resuming the negotiations after 
 the election of Mr. Polk to the Presidency of the United 
 States, concluded his communication of July 12, 1845, to Mr. 
 Pakenham, by stating that the President 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, and that he was instructed to propose the 
 49th parallel as before to the Pacific Ocean, offering at the 
 same time to make free any port or ports on Vancouver's 
 Island south of this parallel, which the British Government 
 may desire. 
 
 "This proposal," as justly observed by Mr. Pakenham, in his 
 reply of July 29, 1835, " was 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." 
 
 The President of the United States, in his message to 
 Congress of the 1st of December, 1845, after briefly review- 
 ing the course of the several negotiations, concludes that por- 
 tion of his message with these remarkable words : — 
 
 " The civilised 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." 
 
 Mr. Buchanan had stated to the same effect, at the con- 
 clusion of his letter of August 30, 1845, that not " only 
 respect for the conduct of his predecessors, but a sincere 
 desire to promote peace and harmony between the two govern- 
 ments," had actuated the President to offer a proposition so 
 liberal to Great Britain. 
 
256 EFFECTS OF THE I'llOPOSALS. 
 
 ** And how has this 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, ' 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 reason- 
 able expectations of the British Government.' " 
 
 It could hardly require a reference from Mr. Pakenham to 
 the British Government at home, to satisfy him that he should 
 at once decline to accept a less liberal offer than that which 
 his Government had already declined on two previous occa- 
 sions. Surely the meaning of the word *' liberal" must have 
 acquired a different acceptation in the United States from what 
 it bears in the mother-country, or the notions of what con- 
 stitutes " a spirit of liberal concession," must be very different 
 on the eastern and western sides of the Atlantic ; for, in the 
 usual signification of the word in the mother-country, it would 
 be bitter irony to apply such a term to the proposal authorised 
 by President Polk, expressly, as alleged, in deference to what 
 had been done by Presidents Monroe and Adams. It is an 
 offer on the part of Mr. Polk to share a worthless haven with 
 Great Britain, when his predecessors have offered to share the 
 Great River of the West. 
 
 The offer of Great Britain, when first made by her in 
 1824, would have imposed upon her at that time, if accepted 
 by the United States, as likewise at the present time, the 
 necessity of ultimately breaking up four or five settlements, 
 formed by her subjects within the limits that would become 
 prohibited ; and which they had formed under the belief of 
 their full right, as British subjects, to settle there. "But their 
 Government was willing to make these surrenders, for so they 
 considered them, in a spirit of compromise, on points where 
 the two nations stood so divided," (British and Foreign Slate 
 Papers, 1825-26, p. 519;) whereas the United States would 
 not be required to abandon a single settlement ; on the con- 
 trary, they would retain the fertile valley of the Willamette, 
 where their settlers are mostly located. The proposal of the 
 United States, on the other hand, would require that Great 
 Britain should abandon the majority of her settlements, and 
 amongst these Fort Vancouver, the dopot of the Hudson's 
 Bay Company, from which fourteen other settlements receive 
 their supplies ; that she should resign ihv use of the river, the 
 
ABROGATION OF THE CONVENTION. 257 
 
 free navigation of which is absolutely necessary for the trans- 
 port of outfits and their returns; that she should be precluded, 
 not merely from the harbour within the river, but from the 
 harbours in Admiralty Inlet, the only really valuable harbours 
 on the coast ; that she should give up the agricultural district 
 round Puget's Sound, where the fixed population of British 
 Canadians are located, and which bears a similar relation to 
 the future destinies of Northern Oregon, that the valley of 
 the Willamette does to those of Southern Oregon ; and in 
 this proposal Mr, Buchanan, in his letter of July 12, 1845, 
 " trusts that the British Government will recognise the Presi- 
 dent's siticere and anxious desire to cultivate the most friendly 
 relations between the two countries, and to manifest to the 
 world that he is actuated hy a spirit of moderation. ^^ In re- 
 turn Great Britain is to be allowed to retain a district of 
 barren territory in Northern Oregon, in which Captain Wilkes 
 has officially reported to the United States, that " there is no 
 part on the coast where a settlement could be formed that 
 would be able to supply its own wants," and which even for 
 hunting purposes is so unproductive, that the Hudson's Bay 
 Company have found it expedient to lease other hunting 
 grounds within the Russian territories ; and this too, when 
 the future value of the country will consist, not in its capa- 
 bility to supply the fur-trader with the skins of the beaver and 
 sea-otter, but in the adequacy of its grazing and agricultural 
 produce to support a fixed body of inhabitants, as well as to 
 victual the ships of various nations engaged in the China trade, 
 and in the fisheries of the South Sea. Harder conditions 
 could not well have been dictated by a conquering to a con- 
 quered nation as the price of peace, neither do they accord 
 with that spirit of just accommodation with which Mr. Rush, 
 in 1824, expressly declared the Government of the United 
 States to be animated, nor with those principles of mutual 
 convenience which it was then agreed on both sides to keep 
 in view, in order to further the settlement of their mutual 
 claims. 
 
 If the present convention should be abrogated by either 
 party, the only object of which, according to the express de- 
 claration of the two contracting parties, was " to prevent 
 disputes and diflTerences amongst themselves,'' the existing 
 condition of common occupancy does not thereby termi- 
 nate. Each nation will still be bound to respect the settle- 
 ments of the other. The mutual rights and obligations 
 
 12* 
 
258 rilESENT CONDITION. 
 
 recognised by Great Britain and Spain in respect to each 
 other, in the Convention of the Escurial, were recognised 
 once and for all. The United States new stands in the 
 place of Spain ; she asserts that by the Treaty of Florida she 
 holds in her hands all the Spanish title, but her hands arc 
 also bound by the obligations of Spain. By the Conven- 
 tion of the Escurial, the liberty of free access and un- 
 molested trade with the settlements of each other, made 
 subsequent to April 1789, was secured to either party : in 
 other respects their settlements would carry with them the 
 independent rights, which the law of rations secures to the 
 settlements of independent powers. Oregon would thus be 
 dotted over with the settlements of subjects of Great Britain, 
 and citizens of the United States, in juxta-position to each 
 other, like the Protestant and Catholic cantons of Switzer- 
 land. The tribunals of the United States have decided in 
 Washbourne's case (4 John's C. K. 108) and in other cases, 
 " that the 27th article of the Treaty of 1793, which provided 
 for the delivery of criminals charged with murder and for- 
 gery, was only declaratory of the law of nations, and is 
 equally obligatory on the two nations under the sanction of 
 public law, and since the expiration of that treaty, as it was 
 before." So far the recurrence of mutual outrages might be 
 checked. Still, such a condition of things would leave open, 
 as Mr. Rush observed in 1824, "sources of future disagree- 
 ment, which time might multiply and aggravate." It is, 
 therefore, for the interest of both parties, that a line of de- 
 marcation should be drawn, to prevent the possible conflict of 
 jurisdiction. A {"ew square miles, more or less, where the 
 entire territory to be shared between the two nations extends 
 over a district of more than 500,000 square miles, can form 
 but a secondary element of consideration in the question. If 
 we look to the original rights of the United States, as founded 
 on use and settlement, they point exclusively to the southern 
 bank, whilst those of Great Britain point, in a similar manner, 
 to the northern. Citizens of the United States first explored 
 the southern branch of the Columbia, whilst subjects of Great 
 Britain first explored the northern. The flag of the United 
 States has been authoritatively displayed on the southern 
 bank alone, whilst the British ensign has exclusively been 
 hoisted on the northern. Whilst the valley of the Willamette 
 in Southern Oregon is cultivated, according to Captain 
 Wilkes> bv settlers from other countries besides the Ignited 
 
BRITISH VOYAGES. 259 
 
 States, the agricultur.il establishments on the Cowlitz River, 
 and on the shores of Puget's Sound, in Northern Oregon, are 
 exclusively the creation of British subjects. 
 
 Great Britain having expressly declared in 1826, that she 
 claimed " no exclusive sovereignty over any portion of that 
 territory," it has been thought unnecessary to set out in full 
 her original title, as against the United States. It is impos- 
 sible in the present day to ascertain how far Drake was au- 
 thorised to make discoveries in the South Seas on account of 
 his sovereign. We are informed by Stow the annalist, that 
 he had obtained the approval of Queen Elizabeth to the plan 
 of his expedition, through the interest of Sir Christopher 
 Hatton; and the author of "The World Encompassed'' 
 affirms that he had a commission from his sovereign, and that 
 she delivered to him a sword with this remarkable speech : — 
 " We do account that he which striketh at thee, Drake, 
 strikes at us." Captain Burney's opinion, however, seems 
 most to accord with probability — that he had no written com- 
 mission. The Queen, however, on his return, after a pro- 
 tracted inquiry before her Council, upon the complaint of the 
 ambassador of Spain, approved and ratified his acts ; and in 
 her reply to the ambassador's remonstrances against Drake's 
 territorial aggressions, expressly asserted, according to Cam- 
 den, that as she did not acknowledge the Spaniards to have 
 any title by sanction of the Bishop of Rome, so she knew no 
 right they had to any places other than those they were in 
 possession of, (Cf. supr., p. 161.) Vattel (b. xi., § 74) states 
 the law that, " if a nation or its chief approves and ratifies 
 the act of the individual, it then becomes a public concern." 
 Drake thus appears to have been recognised as an instrument 
 of his sovereign ; and though the moderation of the British 
 Government has led it not to insist upon Drake's discovery 
 of the northwest coast as far as 48°, though it was coupled 
 with formal acts of taking possession with the consent of the 
 natives, because Great Britain did not follow it up within a 
 reasonable time with actual settlements, still that discovery 
 has not lost its validity as a bar to any asserted discovery 
 of a later period. 
 
 On the other hand, the expeditions of Captains Cook and 
 Vancouver satisfied all the conditions required by the law of 
 nations for making discoveries and forming settlements. Un- 
 less Captain King, the companion of Cook, had published his 
 account of the high prices which had been obtained bv his 
 
260 SETTLEMENTS IN THE COUNTRY. 
 
 sailors for the furs of the north-west coast of America in the 
 markets of China, the American fur-trader, as Mr. Greenhow 
 terms Captain Gray, would never have resorted to the coast 
 of Oregon. But before any trading vessel of the United 
 States had appeared off those shores. Captain Cook had 
 traced the American coast, from a little above Cape Mendo- 
 cino to Icy Cape, in 70° 29' ; whilst Vancouver was des- 
 patched in 1791 expressly by the British Government, to 
 ascertain what parts of the north-west coast were open for 
 settlement to subjects of Great Britain, in accordance with 
 the 3d article of the Convention of the Escurial ; and after 
 an accurate survey reported, that the Presidio of San Fran- 
 cisco, in about 38°, was " the northernmost settlement of any 
 description formed by the Court of Spain on the continental 
 shore of North-west America." To Vancouver the civilised 
 world was indebted for the first accurate chart of the entire 
 coast. The important services rendered to navigation and 
 science by Vancouver and Lieutenant Broughton, were fully 
 acknowledged by Mr. Gallatin in the negotiations of 1826 ; 
 yet all these, it is contended by the Commissioners of the 
 United States, are entirely superseded by Captain Gray hav- 
 ing first entered the mouth of the chief river of the country. 
 When Mr. Buchanan, therefore, at the commencement of 
 his letter of August 30, 1845, states, " that the precise ques- 
 tion under consideration simply is, were the titles of Spain 
 and the United States, when united by the Florida treaty on 
 the 22d 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' ?" and assumes, as a consequence, that if 
 they were, it will be admitted this whole territory now belongs 
 to the United States ; he avails himself of the ambiguity of 
 the term title, to infer that the establishment of a common title 
 must lead to the admission of an exclusive title. 
 
 With much more reason might Great Britain have set up 
 an exclusive title against the United States, which she has, 
 in the spirit of moderation, forborne to do. She might have 
 said, " We were entitled by the general law of nations to 
 make settlements in this country, as being unoccupied by 
 any civilised nation. We were the first civilised nation that 
 established a permanent occupation of it, which has never 
 been abandoned, by a settlement in the year 1806 on Frazer's 
 River. We have since that time, steadily occupied the entire 
 country north and south of the River Columbia, as far as the 
 
RULE OF FARTITIOJf. '261 
 
 sources of Lewis River, where Fort Hall, the most southern 
 settlement of the Hudson's Bay Company, supplies shelter 
 and food to the wasted and famished settler from the United 
 States, on his first entry into the promised land of Oregon." 
 She might have said, " Before 1833, American citizens, on 
 the testimony of their own countrymen, had no settlements 
 of a permanent kind west of the Rocky Mountayis. Even in 
 the valley of the Willamette, where Captain Wilkes, in 1840, 
 found not more than sixty families, many of them being 
 British subjects, and late servants of the Hudson^s Bay Com- 
 pany, the first settlements were made by officers of that Com- 
 pany, under the encouragement of the Company. It was 
 owing to the report of the thriving condition of these farms 
 having been carried to the United States by American trap- 
 pers, that settlers from that country were led to undertake 
 the long and perilous journey across the Rocky Mountains, 
 which they would never have survived, had not the British 
 settlements preceded their adventurous enterprise, and fur- 
 nished them with supplies on their arrival." Yet after an 
 indisputable use and enjoyment of this country by British 
 subjects for a greater period of time, than that which the 
 United States admitted by treaty in 1824, to establish a valid 
 title by prescription in favour of Russia, from 60° north lati- 
 tude to 54° 40', against their own Spanish derivative title, 
 the President of the United States declares, in his solemn 
 message, his *' 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." 
 
 The plenipotentiaries of the United States, in their nego- 
 tiations with Spain respecting the boundary of Louisiana, laid 
 down this principle as adopted in practice by European 
 Powers, in the discoveries and acquisitions which they have 
 respectively made in the New World, — that " whenever one 
 European nation makes a discovery, and takes possession of 
 any portion of that continent, and another afterwards does the 
 same at some distance from it, when the boundary between 
 them is not determined by the principle above mentioned 
 (viz., the taking possession of an extent of sea coast,) the 
 middle distance becomes such of course." (Cf supr., Ch. 
 XIIL) If we apply this rule to the settlement of the claims 
 of Great Britain and the United States, either in respect to the 
 conflict of their original titles, or in respect to the conflict of 
 
262 RUSSIAN POSSESSIONS. 
 
 the title of Great Britain recognised in the Convention of the 
 Escuritil, with the title of the tJnited States devolved to them 
 by the Treaty of Washington, we shall find it confirm the 
 reasonableness of the offer made by Great Britain. It was 
 ascertained by Vancouver, who had been despatched by his 
 sovereign with this express commission, that the northernmost 
 part of the not-th-west coast already occupied by Spain, at the 
 signature of the Convention of 1790, was the Presidio of San 
 Francisco, in about 38° north latitude. Vancouver at the 
 same time ascertained that the settlements of the Russians 
 extended as far south as Port Etches, at the eastern extremi- 
 ty of Prince William's Sound, a little to the south of 60°, and 
 thus determined the extent of the common rights of Great 
 Britain and Spain under the convention, which Mr. Pitt declar- 
 ed, as first Minister of the Crown of England, " he should es- 
 teem the Government of his Britannic Majesty highly culpable 
 if they neglected to ascertain, by actual survey," (St. James's 
 Chronicle, December 15, 1790.) Both the United States, 
 however, subsequently to their acquisition of their derivative 
 Spanish title, and Great Britain, have recognised, by separate 
 treaties in 1824 and 1825, the territorial rights of Russia as 
 far south as 54° 40' north latitude, founded on the use and 
 enjoyment of the coast by Russian subjects, during the inter- 
 vening period between Vancouver's visit and the publication 
 of the Imperial Ukase of September 16, 1821 ; so that the 
 rights of Great Britain to form settlements under the Conven- 
 tion of the Escurial, are thus limited by her own act to the 
 parts of the coast between 38° and 54° 40', and the United 
 States, by a similar act, have confined their derivative title to 
 the same northern boundary. When, however, the United 
 States claim to hold in their hands the title of Spain against 
 Great Britain, and upon the strength of that title propose to 
 make a final partition of the territory hitherto the subject of a 
 common occupation, if they would abide by their own rule, as 
 solemnly propounded by their commissioners on two distinct 
 occasions, the middle distance between 38° and 64*^ 40' be- 
 comes the boundary line of course. The extremities of the 
 country to be divided are thus marked out by the Presidio of 
 San Francisco on the southern side, and by Fort Frazer on the 
 northern, and nature seems to have accorded the embouchure 
 of the Columbia River, in the latitude of 46"^ 18', to meet the 
 conditions of so reasonable a rule, as that which the United 
 
PROPOSALS OF GREAT BRITAIN. 263 
 
 States then maintained to be grounded on an acknowledged 
 principle of international law. 
 
 Such a rule might reasonably be resorted to on this occa» 
 sion, as furnishing a solution to the problem of converting the 
 common rights of the United States and Great Britain into 
 separate rights. The United States, however, might admit 
 that the principle was abstractedly sound, but that its applica- 
 tion, as proposed, was inadmissible, as their claim commenced 
 at 42*^, and not at 38®. It is evident, however, that the de- 
 rivative title from Spain as against Great Baitain, if it be ad- 
 vanced as the basis of the negotiation, which has been the 
 case, cannot assume a different form in the hands of the 
 United States, from that which it would have presented in the 
 hands of Spain herself : otherwise, the less Spain had ceded 
 to the United States, the more the United States would be en- 
 titled to claim from Great Britain, which of course is untena- 
 ble. But Great Britain has conceded to the United States 
 more than the limits which this rule would assign to them, 
 namely, the entire left bank of the Columbia River as far as 
 the 49th parallel, thereby giving up to them the exclusive 
 possession of the Lewis River and the Clarke River, and the 
 intermediate territory. 
 
 The general character, however, of the proposals of Great 
 Britain cannot be better described than in the words of Mr. 
 Pakenham's letter of Sept. 12, 1844 :— 
 
 " It is believed that by this arrangement ample justice 
 would be done to the claims of the United States, on what- 
 . ever 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 re- 
 lates to the navigation of the principal river, they would en- 
 joy a perfect equality of right with Great Britain : and with 
 respect to harbours. Great Britain shows every disposition to 
 consult their convenience in this particular. On the other 
 hand, were Great Britain to abandon the line of the Colum- 
 bia as a frontier, and to surrender the right to the navigation 
 of that river, the prejudice occasioned to them by such an ar- 
 rangement, would, beyond all proportion, exceed the ad- 
 vantage 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 extension of terri- 
 
264 FUTURE DESTINIES OP OREGON. 
 
 tory, 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 con- 
 siderations of mutual convenience and advantage." 
 
 Great Britain has advanced in her offers on each separate 
 negotiation. Let her make one step more in advance. Let 
 her offer to the United States to declare the ports in Ad- 
 miralty Inlet and Puget's Sound to be "Free Ports," with a 
 given radius of free territory. The advantage which she 
 would give to the United States, would far exceed the preju- 
 dice occasioned to herself by such an arrangement, and the 
 proposal would be in accordance with the principle sanction- 
 ed by the 5th article of the Convention of tlie Escurial, which 
 guaranteed a mutual freedom of access to the future settle- 
 ments of either party for the purposes of trade. If her 
 Britannic Majesty's Government should deem it consistent 
 with a just regard to the interests of Great Britain, as it 
 would certainly be in accordance with the spirit of modera- 
 tion which has hitherto influenced her Majesty's councils, to 
 make this further offer, and if the President of the United 
 States should instruct his plenipotentiary to reject it, the at- 
 tempt to effect a partition of the territory by treaty may be 
 regarded as hopeless. It will then be best for both parties 
 that the Convention of 1827 should be abrogated, and the 
 future destinies of the country be regulated by the general 
 law of nations. It would be idle to speculate upon those fu- 
 ture destinies, — whether the circumstances of the country 
 justify Mr. Webster's anticipations that it will form at some 
 not very distant day an independent confederation, or whether 
 the natural divisions of Northern and Southern Oregon are 
 likely to attach ultimately the former by community of in- 
 terests to Canada, and the latter to the United States of 
 America. When it is remembered that Mr. Calhoun declared 
 in 1843, that "the distance for a fleet to sail from New 
 York to tlie Columbia is more than 13,000 miles, a voyage 
 that would require six months," and that " the distance over- 
 land, from the State of Missouri to the mouth of the Colum- 
 bia River is about 2,000 miles, over an unsettled country of 
 naked plains and mountains, a march, if unopposed, of 120 
 days," the scepticism of such as doubt the inevitable absorp- 
 tion of Oregon into the United States, seems at least to be 
 excusable, 
 
 THE END. 
 
INDEX 
 
 Adams, J. Quincy, negotiates the 
 Florida Treaty, 169. 
 
 Aguilar, Martin d', 53, 58. 
 
 Aiarcon, Fernando, 73. 
 
 Albion, New, 15. 
 
 Anahuac, plateau of, 14. 
 
 Anderson on Commerce, 148, 158. 
 
 Anian, Straits of, said to be discover- 
 ed by Cortereal, in 150(), 18. 
 
 Argonaut, the, seized at Nootka, 81. 
 
 Arkansas River, 166, 170. 
 
 Astor, John Jacob, 23, 236. 
 
 Astoria, established in 1811, 24. Trans- 
 ferred by purchase to North-west 
 Company in 1813, 25, 192, 238. Sur- 
 rendered to the United States, 239, 
 252. Sub modo, 241. Not a nation- 
 al settlement, 237. 
 
 Atlalntic Colonies, 213. 
 
 Barclay, Captain, first descries the 
 Straits of Fuca, 19, 62. 
 
 Behring's Voyage, 54. 
 
 Belsham's History of England, 92. 
 
 Bernard, St., Bay of, 155. 
 
 Biographie Universelle, error as to 
 D'rake, 30, 36. As to Gali, 54. 
 
 Bodega, Port de la, 42, 58. 
 
 Bodega y Quadra, 56. 
 
 Bracton de Legibus, 113. 
 
 Broughton, Lieut., explores the Co- 
 lumbia, 104. Takes possession of 
 the country, 105. 
 
 Bulfinch's Harbour, 254. 
 
 Bynkershoek on Discovery, 118. 
 
 Cabrillo, .Juan Rodrig-ues, voyage in 
 1542,26. ft > J S 
 
 Caledonia, New, 15. 
 
 Calhoun, Mr , letter of Sept. 3, 1844, 
 ^ 200. Speech in 1{^3, 264. 
 
 California, peninsula of, discovered in 
 1539, by F. de Ulloa, 26. A penin- 
 sula, 54. Jesuit missions, 54. A 
 
 cluster of islands, 74. Spanish pos- 
 sessions, 167. 
 
 Camden, Life of Elizabeth, 45. 
 
 Canada, limits of, 150. Cession of, 
 211. 
 
 Carver, Jonathan, travels in North 
 America, 16. First announces a 
 river called Oregon, or the Great 
 River of the West, 16. 
 
 Cascade Canal, 20. 
 
 Castillo, Domingo de, 26. 
 
 Cavendish, Thomas, voyage of, 32. 
 
 Cavallo, Juan, 77. 
 
 Channing, Dr. 228. 
 
 Charters, 212. Of Georgia, 197. Ca- 
 rolina, 196. To what extent valid, 
 157. Of the Hudson's Bay Compa- 
 ny, 158. Argument from, 159. 
 
 Clarke. See Lewis and Clarke. 
 
 Clarke, River, discovered, 22, 233. 
 Source in 45= SO', 190. 
 
 Clatsop, Fort, 22, 234. 
 
 Cliffe, Edward, his narrative, 28. 
 
 Colnett, Capt., 62, 79. Instructions 
 to, 204. 
 
 Colorado, Rio, del Occidente, 14. 
 
 Columbia, country of the, 17. Mouth, 
 94. Bay, 95. River, 105. Pro- 
 gressive discovery of the River, 
 108. Proposed as a boundary by 
 Spain, in 1819, 165. Exploration by 
 Gray, 243. Northernmost bank, 
 191. Course, 198. Extent of val- 
 ley, 198. 
 
 Columbia, merchant ship, 16, 62. Log 
 book, 101. 
 
 Congress, documents of, 208. 
 
 Contiguity, doctrine advanced by Mr. 
 Gallatin, 218. A reciprocal title, 127. 
 
 Convention of 1818, l45, 178, 241. Of 
 1803, not ratified, 251. Of 1806, 
 ditto, 147. 
 
 Conventions, transitory, 129. Mixed, 
 133. 
 
INDEX. 
 
 Cook, Captain, instructions to, 15, 58. 
 
 Discovery of Nootka, 116. 
 Coronado, Vasqiiez de, 153. 
 Cortereal, Caspar de, 18. 
 Crozat's grant ol' Louisiana, 155. 
 
 Davis, John, the navigator, 44. 
 
 Descubicrta and Atrevida, voyage of 
 the, 66. 
 
 Discoverj'^, title by, 116. Not in the 
 Roman law, 115. Conditions of, 
 121. Progressive, 122. Requires 
 Notification, 200. An inchoate act 
 of sovereignty, 2.30. 
 
 Dixon and Portlock, 61, 76. 
 
 Domain, eminent. 111. Usefi 1, 111. 
 
 Drake, Sir G., his voyage, 27. French 
 account, 30. Knighted by Queen 
 Elizabeth, 39. Limits of voyage, 
 40. His discovery maintained by 
 British negotiators, 186. 
 
 Duflot de Mofras, 93, 160. 
 
 Duncan and Colnett, 62. 
 
 Elizabeth, Queen, reply toMendoza, 
 
 118 Speech of, 45, 259. 
 Escarbot's Histoire de la Nouvelle 
 
 France, 167. 
 Escurial, Convention of the, 86, 201, 
 
 244 Mr. Greenhow's view, 90. 
 
 British rights under, ascertained, 
 
 262 
 Eyries, M., error as to Drake, 35. 
 
 Gali, 52. 
 
 Factories, or comptoirs, 206. 
 
 Falconer's treatise on the Mississippi, 
 155. 
 
 Family Compact, 86. 
 
 Felice and Iphigenia, 77. 
 
 Ferrelo, Bartholeme, 27. 
 
 Flag, on the, Dr. Chaning, 228. Mr. 
 Gallatin, 230. 
 
 Fletcher, World Encompassed, 28, 
 35. Manuscript notes, 38. 
 
 Fleurieo, 30, 47. 
 
 Florida Treaty. See Washington. 
 
 Fonte, Bartholeme, 70, 171. 
 
 Francisco, Port San, the northern- 
 most possession of Spam, 42, 260. 
 
 Frazer's Kiver, 20. 
 
 Frazer's Lake, 21. Fort, 261, 262. 
 
 Fuca, Juan de, Strait.>< of, 19. Dis- 
 covery claimed bv Martinez, 56. 
 Discovered by Barclay, 62. Story 
 of, 66. Not mentioned in Spanish 
 archives, 69. Spanish claim, 171. 
 
 Fur Company, American, 23. Mis- 
 souri, 23. Pacific, 23. 
 
 Fur trade, 18, 
 
 Gali, Francisco, .50, 54, 
 
 Galiano and Valdes, 19. See Sutil 
 and Mexicano. 
 
 Gallatin, Mr , his doctrine of discove- 
 ry, 109. Letter to Mr. Astor, 194. 
 His counter-statement in 1826, 208. 
 
 George, Fort, 143. 
 
 Georgia, New, 15. 
 
 Gray, Caj)tain, first explored the 
 mouth of the Columbia River, 62. 
 Crosses the bar, 101. Extent of his 
 researches, 108. 
 
 Hakluyt, Collection of Voyages, 27. 
 
 Hanna, Captain, 77. 
 
 Hanover, New, 15 
 
 Hearne, journey of, 58. 
 
 Heceta, voyage of, 56. Inlet of, 57, 
 
 94. Discovery of the Columbia 
 
 River, 95, 243. 
 Hennepin, Father, 157. 
 Henry, Mr., established a trading post 
 
 on the Lewis River, 23, 236. 
 High lands, territorial limits, 196. 
 Horn, Cape, discovered, 54. 
 Hudson's Bay Company, 20. Title, 
 
 125. Territory, 213. Boundaries, 
 
 147. 
 Humboldt, Alexander von, 46, 233. 
 
 Iberville, D', 155. 
 
 Illinois, the, annexed to Louisiana, 
 156 Nation of, 210. 
 
 Ingraham, Joseph, pilot of the Colum- 
 bia, 81. 
 
 Jefferson, President, letter on Lou- 
 isiana, 146, 160. 
 
 Jeflferys' America, 154, 161, 210. 
 
 Jessup, General, 179. 
 
 Jesuit missions, 54. 
 
 Johnson, Dr., Life of Sir F. Drake, 
 46. 
 
 Jurisdiction, maritime, 184, 173. 
 
 Kerlet's memoir on Louisiana, 164. 
 
 Kendrick, Caj)t , 63, 81. 
 
 King, Capt. James, first suggests a 
 trade in furs with north-west coast 
 of America, 18, 60. 
 
 King George's Sound Company, 76, 
 
 Klubcr, Droit des Gens, 112, 117. 
 
 Kooskooskee River, 22. 
 
 Lake of the Woods, 145. Rainy, 
 
 149 Red, 149. Travers, 149. Ab- 
 
 bitibbe, 149. 
 Law, international rules of, at Treaty 
 
 of Washington, 172. 
 Le-.>is and Clarke's expedition, 22. 
 
 Encampment on south bank of 
 
 River Columbia, 2;J5. 
 Lewis, or Snake River, 22. 
 
INDEX. 
 
 Ill 
 
 Liberties distinct from rights, 137. 
 
 Lorenzo, Bay of San, 55, 59. 
 
 Louisiana, limits of Crozat's Grant, 
 155. Jefferys' America, 1.54, 210. 
 Declaration of France in 1761, 212 
 Cession of, 147. Western bounda- 
 ries, 158. Sold to the United 
 States, 157. Extent of, 210, 212. 
 
 Mackenzie, Alexander, first crosses 
 the Rocky Mountains, 19. 
 
 Maldonado, pretended voyage, 65. 
 The author a Fleming, 66. 
 
 Maps, of Ortelius and Hondius, 45, 
 74 Of the 16th and 17th cen- 
 tury, 74. Difficulty from incorrect, 
 150. Questionable authority of, 
 161. Melish's, 166. Inaccuracy of, 
 212. 
 
 Maquilla, or Maquinna, 79. 
 
 Marchand's Voyage, 47. 
 
 Martens, Droit des Gens, 117. 
 
 Martinez at Nootka, 80. 
 
 Matagorda Bay, 155. 
 
 Meares, 61. Sailed in the Nootka, 77. 
 In the Felice 78, 95. Memorial to 
 Parliament, 82. Log book, 97. 
 
 Mendocino, Cape, 27. Furthermost 
 known land, 45. 
 
 Mississippi, sources of the, 146. 
 Comj)any, 156. Discovered by 
 Hernando de Soto, 153. Discover- 
 ed by Spain, 153, 197. Explored 
 by British subjects, 154. Free 
 navigation of, 195. 
 
 Missouri Fur Company, first estab- 
 lishment of citizens of United 
 States on the west of the Rocky 
 Mountains, 23. 
 
 Monroe, President, declaration of, 
 178. 
 
 Mouson's, Sir W., Naval Tracts, 44. 
 
 Mountains, Snowy, 165. 
 
 Multnomah River, 166. Incorrectly 
 laid down, 166. Proposed as a 
 boundary by Spain, in 1319, 165, 
 170. Sources, 190. 
 
 Natchitoches, 164. 
 
 National flag, 226. Protection of, 193. 
 
 Mercantile, 227. Sovereign, 228. 
 
 Mr. Gallatin's letter, 2^.0. Dr. 
 
 Channing's pamphlet, 228. 
 National ship, Mr. Rush's view, 184 
 
 Mr. Buchanan'.-? view, 226. 
 Negotiations in 1818, 1 14. 
 New France, extent westwardly, 161, 
 
 210. 
 New Mexico, extent of, 171. 
 Nootka Sound, 73. Discovery of, 1 16, 
 
 British colours hoisted at, 79. De- 
 
 livered up to the British, 92. Con- 
 troversy^, 119. British settlement, 
 203. 
 
 Nootka Sound Convention. See Es- 
 curial. Mr. Pitt's view, 247. 
 
 North-west Company established, 20. 
 Their first settlement west of the 
 Rocky Mountains, 20. 
 
 Occupation, title bj'. 111. Distinct 
 from occupancy, 114. 
 
 Ohio River, 159. 
 
 Okanegan River, 24. 
 
 Onis, Don Louis de, 164. 
 
 Oregon, or Oregan River, so called 
 by Carver, 16. 
 
 Oregon Territory, extent of, 17. Pre- 
 tensions of the United States in 1818, 
 142. First notice of claim, 147. 
 
 Pacific Fur Company, 23. Dissolu- 
 tion of, 25, 19^. Not chartered, 
 192 
 
 Panuco, the northernmost settlement 
 of Spain on the Gulf of Mexico, 
 154, 176. 
 
 Partition, rule of, 261. 
 
 Patagonians, 39. 
 
 Perez, Juan, voyage, 55, 116. En- 
 trada de, 55. 
 
 Perouse, La, 60. 
 
 Pichilingue Bay, 73. 
 
 Poletica, Chevalier de, 179. 
 
 Pope Alexander VI , his bull, 27. 
 
 Pre-emption, right of, 177. 
 
 Prescription, title of, 124. 
 
 President Polk's Message, 255, 
 
 Pretty, Francis, 28. JNot the author 
 of the Famous Voyage, 32. 
 
 Purchas, Pilgrims of, JU. 
 
 Racoon, sloop of war, 25, 239. 
 
 Rio Bravo del Norte, 171. 
 
 Rivers, appendages to territory, 173, 
 
 195. Common use of, 126, 176, 195. 
 
 Mr. Wheaton on, 195. 
 Rocky Mountains, 14. 
 Rolls Court, 1.31. 
 Rush, Mr , 180, 241, 251, 253. 
 Russia, establishments on north-west 
 
 coast of America, 60, 262. Claims 
 
 on north-west coast, 120. 
 Russian American Company, in 1799, 
 
 200. 
 
 Salle, De la, 154, 197. 
 Santa Fe, 170. 
 
 Sea coast, discovery of, 172. Posses- 
 sion of, 196. 
 Servitudes, permanent, 134. 
 Settlement, title by, 1^. Jurisdiction 
 
INDEX. 
 
 of, 172. Conterminous, 175. Not mere 
 
 trading stations, 202. Not factories, 
 
 206. Intermixed, 218. Priority of, 
 
 221. 
 Sierra Verde, 13, 166. 
 Silva, Nufio da, his narrative, 28. 
 Schoell's Traites, 90, 92, 147. 
 Soto, Hernando de, discovered the 
 
 Mississippi, 171. 
 South Carolina, laws of, 227. 
 Spain, claims to the north-west coast 
 
 of America, 16S. 
 Stow, the Annali&t, 43. 
 Stowell, Lord, on rivers, 106. On 
 
 discoveries, 121, 200. 
 Sutil y Mexicana, voyage of, 48. 
 
 Tacoutche - Tesse River, held by 
 I^e-wis and Clarke to be the Colum- 
 bia, 19, 232. 
 
 TchiricofF's voyage, 54. 
 
 Territory in use, 221. 
 
 Texas, boundaries of, 171. 
 
 Thalweg, 176 
 
 Thomson, Mr. David, the astronomer 
 of the North-west Company, de- 
 scends the north branch of the Co- 
 lumbia River, 21, 24, 171, 2:3:3. 
 Determines the latitude of the 
 sources of the Mississippi, 146. 
 
 Tipping, Captain, 61, 70. 
 
 Title by Occupation, 111. Discovery, 
 115. Sea coa.st, 172 Settlement, 
 124. Prescription, 124. Convention, 
 129. 
 
 Tonquin, ship, destroyed by the In- 
 dians, 24. 
 
 Treaty of Utrecht, 84, 144, 148. Paris, 
 of 180:?, 147. Paris, of 1763, 149. 
 Ryswick, 157. Washington, 173. S. 
 
 lldefonso, 157, 162. The Escurial, 
 8(>. 201. Ghent, 141. Family Com- 
 pact, 86, 92. Paris, of 1783, 133, 
 146, 151. Of 1794, 146. 
 Treaties terminable by war, 135. 
 Sometimes contain acknowledg- 
 ments of title, 136. 
 
 Ukase of Russia respecting the north- 
 west coast, 178, 
 
 Ulloa, Francisco de, 26, 54, 72. 
 
 United States, the Pre>ident's plan as 
 to the Pacific Ocean, 169. 
 
 Use, innocent, 128. 
 
 Usucaption, title by, 124. 
 
 Utrecht, Treaty of, 211. Commis- 
 sioners under, 148. 
 
 Vancouver, Capt., 18. Instructions, 
 98. Names C. Orford, 9S. Ob- 
 serves Heceta's River, 100. Vin- 
 dicated against Mr. Greenhow's 
 charges, 103, 107. 
 
 Vattel on Occupation, 173. On Dis- 
 covery, 193. On Prescription, 125. 
 
 Vicinitas of the Roman law, 126. 
 
 Viscaino, Sebastian, 54. 
 
 Wabash River, or Ouabache, 156. 
 
 Washington, Treaty of, cession under, 
 172, 180. Object of Spanish conces- 
 sions, 170, m. 
 
 Wheaton on Discovery, 118. 
 
 Wilkes', Capt., expedition, 74. 
 
 Willamette, settlement on the, 256, 
 259. 
 
 Webster, Daniel, 2&4. 
 
 Wolffii cTus Gentium, 112. Institu- 
 tions du Droit, 113, 121. 
 
 Woods, Lake of the, 145.