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P4KENHAM, I'lIE BRITISH PLENIPOTENTIARY'S REPLY TO THE AMERI CAN GOVERN MENT, Washington, Julv 2'Jth, 1815, Notwithstanding the prolix discussion which the snhject has already undergone, tlie under- signed, Her l$ritannic Majesty's Envoy Extraordinary and Minister I'lenipotcntiary, feels obliged to place on record a few observations in reply to the statement, marked J.li., which he had the honour to receive, on the 16th of this month, from the hands of the Secretffry of State of the United States, terminating with a proposition on the part of the United States for the settle- ment of the Oregon question. In this paper it is stated that "the title of the Uijited States to that portion of the Oregon terri- tory between the valley of the Columbia and the Russian line, in 54° 40' north latitutie is re- corded in the Florida treaty. Under this treaty, dated on 22d February, 1819, Spain coded to the United States, all her rights, claims, and pretensions to any territories west of the Rocky Moun- tains, and north of the 42d parallel of latitude." " We contend," says tlie Secrctarj' of State, "that at the date of this convention, Spain had a good title, as against Great Britain, to tlie wlioh; Oregon territory, and, if this be established, the question is then decided in favour of the Uniteil States," the convention between Great Britain and Spain, signed at the Escurlal, on the 28th October, 179f), notwithstanding. "If," says the American plenipotentiary, "it should appear that this treaty was transient in its very nature; that it conferred upon Great Britain no right but that of merely trading with the Indians, whilst the country should remain unsettled, and making the necessary establishments for this purpose, that it did not interfere with the ultimate sovereignty of Spain over the terri- tory ; and, above all, that it \;as annulled by the war between Spain Jind Great IJrilain, in 1790, and has never since been renewed by the parties, then the British claim to any portion of the territory will prove to be destitute of foundation." The undersigned will endeavour to show not only that when Spain concluded witli the Uniteil States the treaty of 1819, commonly called the Florida treaty, the convention concluded between the former Power and Great Britain, in 1790, was considered by the parties to it to be still in force ; but even that, if no such treaty had ever existed. Great Britain would stand, with refer- ence to a claim to the Oregon territory, in a position at least as favourable as the United States. The treaty of 1790 is not appealed to by the British Government, as the American plenipoten- tiary seems to suppose, as their "main reliance" in the present discussion ; it is appealed to to show that, by the treaty of 1819, by which "Spain ceded to the United States all her lights, claims, and pretensions to any territories west of i he Rocky Mountains, and north of the 4 2(1 parallel of latitude," the United States acquired no right to exclusive dominion over any part of the Oregon territory. The treaty of 1790 embraced, in fact, a variety of objects. It partook in some of its stipula- tions of the nature of a commercial convention ; in other respects it must be considered as an acknowledgment of existing rights, an admission of certain principles of international law, not to be revoked at the pleasure of cither party, or to be set aside by a cessation of friendly relations between them. \) ( bearing u even if tl to her clc as good a This b of their \ territory affirmativ ration, at As reh ment tha ment of t "The of Februi west coas United S complete The tit If this previousl the same Thus, the clain ciple, eqt Let us authentic Reject I catcd, it Flattery, verer of ! very of t' Inl7S Straits o In the at the vi Inl7i memoral the right of the A the possi In 175 mentioni Sound, e sides, dis thus circ to Vance presentei territory While a partne of the ri effected from sea pany est In 181 and the In the northerr ously dis From tory was the Ore J regions i Y'S 1845. lie uiider- ;ls obliged ic had the ate of tlie he scttlc- egoii terri- utlc is re- ded to the :ky Muini- of State, tlie wliolc the United the 2Htli sicnt in its with tlic bliblinients the terri- n, in 17'JG, on of tlie the United id between )e still in vith refer- ted States, ilenipoten- ialed to to ler lights, F the 4 2d iny part of ts stipida- red as an law, not to relations d in con- vere it not ^hat all the n)iul7y(i to restore fonr, • thestipu- •equirc, in the resto- have been jr position the >i(»rth to see the y the sub- he British, and \^hcn, tates ; and I inconi])a- een Great ions of the t itself had H The undersigned trusts that he has now shown that the convention of 1790, (the Nootka'- Sound Convention), has continued in full and complete force up to the present moment. F5y reason, in the first place, of the commercial character of some of its provisions, as such expressly renewed by the convention of August, 1814, between Great l^ritain and Spain. By reason, in the next place, of the acquiescence of Spain in various transactions to which it is not to be supposed that that power would have assented, had she not felt bound by the provisions of the convention in question. And, thirdly, by reason of repeated acts of the Government of the United States, previous to the conclusion of the Florida treaty, manifesting adherence to the principles of the Nootka ronve iition, or at least dissent from the exclusive pretensions of Spain. Having thus replied, and he hopes satisfactorily, to the observations of tlie American Plenipo- tentiary with respect to the effect of the Nootka Sound convention and the Florida treaty, as bearing upon the subject of the present discussion, the undersigned must endeavour to show that even if the Nootka Sound convention had never existed, the position of Great Britain in regard to Iter claim, whether to the whole or to any particular portion of the Oregon territory, is at least as good as that of the United States. This branch of the subject must be considered, first, with reference to principle — to the riglit of their party, Great Britain or the United States, to explore or make settlements in the Oregon territory without violation of the rights of Spain ; and next, supposing the first to be decided affirmatively, with reference to the relative value and importance of the acts of discovery, explo- ration, and settlements effected by each. As relates to the question of principle, the undersigned thiriks he can furnish no better argu- ment than that contained in the following words, which he has dready once quoted from the state- ment of the American Plenipotentiary. " The title of the United States to the valley of the Columbia, is older than the Florida treaty of February, 1819, under which the United States accpiircd all the rights of Spain to the north- west coast of America, and exists independently of its provisions." And again, " the title of the United States to the entire region drained by the Columliia river and its branches, was perfect and complete before the date of the treaties of joint occupancy of October, 1818, and August, 1827." The title thus referred to, must be that resting on discovery, exploration, and settlement. If this title then, is good, or rather was good, as against the exclusive pretensions of Spain, previously to the conclusion of the Florida treaty, so must the claims of Great Britain, resting on the same grounds, be good also. Thus, then, it seems manifest that, with or without the aid of the Nootka Sound convention, the claims of Great V Aain, resting on discovery, exploration, and settlement, are, in point of prin- ciple, equally valid with those of the United States. Let us now see how the comparison will stand when tried by the relative value, importance, and authenticity of each. Rejecting previous discoveries north of the 4 2d parallel of latitude as not sufficiently authenti- cated, it will be seen, on the side of Great Britain, that in 177G, Captain Cook discovered Cape Flattery, the southern entrance of the Straits of Fuca. Cook must also be considered the disco- verer of Nootka Sound, in consequence of the want of authenticity in the alleged previous disco- very of that port by Perez, In 1787, Captain Berkeley, a British subject, in a vessel under Austrian colours, discovered the Straits of Fuca. In the same year, Captain Duncan, in the ship Princess Royal, entered the straits, and traded at the village of Classet. In 1788, Meares, a British subject, formed the establishr-ient at Nootka,.vfhich gave rise to the memorable discussion with the Spanish Government, ending in the recognition, by that power, of the right of Great Britain to form settlements in the unoccupied parts of the north-west portion of the American continent, and in an engagement, on the part of Spain, to reinstate Meares in the possession from which he had been ejected liy the Spanish commanders. In 1792, Vancouver, who had been sent from England to witness the fulfilment of the above- mentioned engagement, and to eflfect a survey of the north-west coast, departing from Nootka Sound, entered the Straits of Fuca ; and after an accurate survey of the coasts and inlets on both sides, discovered a passage northwards into the Pacific by which he returned to Nootka, having thus circumnavigated the island which now bears his name. And here we have, as far as relates to Vancouver's Island, as complete a case of discovery, exploration, and settlement as can well be presented, giving to Great Britain, in any arrangement that may be made with regard to the territory in dispute, the strongest possible claim to the exclusive possession of that island. Wliile Vancouver was prosecuting discovery and exploration by sea. Sir Alexander Mackenzie, a partner in the North-west Company, crossed the Rocky Mountains, discovered the head waters of the river since called Frazer's River, and, following for some time the course of tliat river, effected a passage to the sea, being the first civilized man who traversed the continent of America from sea to tea in those latitudes. On the return of Mackenzie to Canada, the North-west Com- pany established trading posts in the country to the westward of the Rocky Mountains. In 1806 and 1811, respectively, the same company established posts on the Tacoutche, Tesse, and the Columbia. In the year 1811, Thompson, the astronomer of the North-west Company, discovered the northern head waters of the Columbia, and, following its course till joined by the rivers previ- ously discovered by Lewis and Clarke, he continued his journey to the Pacific. From that time till the year 1818, when the arrangement for the joint occupancy of the terri- tory was concluded, the North-west Company continued to extend their operations throughout the Oregon territory, and to " occupy," it may be said, as far as occupation can be effected in regions so inaccessible and destitute of resources. While all this was tiassinir. th^ fnllnwinfr nvr.n»^ n^Pnrrn.l «,l.iM. ^»n.fU..t» .!-» A.„-= .-■ made to it on the part of England during the negotiation of tliat year on the Oregon (juestioii. In reply to this argument it will he sufficient for the undersigned to remind the American plenipotentiary that in the year 1818 no claim, as derived from Spain, was or could he jmt forth by the United States, seeing that it was not until the following year (the year 1819), that the treaty was concluded hy which Spain transferred to the United States her rights, claims, and pre- tensions to any territories west of the Uocky Mountains, and north of the 42d parallel of latitude. Hence, it is obvious that in the year of 1818 no occasion had arisen for appealing to the qua- lified nature of the rights, claims, and pretensions so transferred — a qualification imposed, or at least recognized, by the conveniion of Nootka. The title of the United Stales to the valley of the Columbia, the American Plenipotentiary observes, is older than the Florida Treaty of February, 1819, and exists independently of its pro- visions* Even supposing, then, that the British construction of the Nootka Sound convention was correct, it could not apply to this portion of the territory in dispute. The undersigned must be permitted respectfully to inquire upon what principle, tmless it be upon the princijde which fo;ms the foundation of the Nootka convention, could the United States have acquired a title to any part of the Oregon territory, previously to the treaty of 1H19, and independently of its provisions? By discovery, exploration, settlement, will be the answer. But, says the American Plenipotentiary, in another part of his statement, the rights of S|»aiii to the west coast of America, as far north as the 61st degree of latitude, were so complete as never to have been seriously questioned by any European nation. They had been maintained by Spain with the most vigilant jealousy, ever since the discovery of the American continent, and had been acquiesced in by all European Powers. They had been admitted even by Russia, and that, too, imder a sovereign peculiarly tenacious of the territorial rights of her empire, who, when complaints had been made to the cpurt of Russia against Ilussiaii subjects, for violating the Spanish territory on the north west coast of America, did not hesitate r-ry^tyrfmr^ to assure the King of Spain tliat she was extremely sorry that tlie repeatetl orders issued to pre- vent the subjects of Russia from violatijjg, in the sn)ullest degree, the territory belonging to "another power, should have been disobeyed. In what did this alleged violation of territory co'isist ? Assuredly in some attcnptcd acts of discovery, exploration, or settlement. At that time Russia stood in exactly the same position with reference to the exclusive rijriits of Spain as the United States; and any acts in contravention of those rights, wiicther cnianatiiig from Russia or from the United States, would necessarily he judged by one and the same rule. How then can it be pretended that acts which, in the case of Russia, were considered as cri minal violations of the Spanish territory, should, in the case of citizens of the United States, he appealed to as constituting a valid title to the territory affected by them ; and yet from this inconsistency the American Plenipotentiary cannot escape, if he persists in considering the Ame- rican title to have been perfected by discovery, exploration, and settlement, when as yet Spain had made no transfer of her rights, if, to use his own words, " that title is older than the Florida treaty, and exists independently of its provisions." According to the doctrine of exclusive dominion, the exploration of Lewis and Clarke, and the establishment founded at the mouth of the Columbia, must be condeumed as encroachments ou the territorial rights of Spain. According to the opposite principle, by which discovery, exploration, and settlement are consi- dered as giving a valid claim to territory, those very acts are referred to in the course of the same paper as constituting a complete title in favour of the United States. Besides, how shall we reconcile this high estimation of the territorial rights of Spain, consi- dered independently of the Nootka Sound convention, with the course observed by the United States in their diplomatic transactions with Great Britain, previously to the conclusion of the Florida treaty ? The claim advanced for the restitution of Fort George, under the first article of the treaty of Ghent ; the arrangement concluded for the joint occupation of the Oregon terri- tory by Great Britain and the United States; and, above all, the proposal actually made on the part of the United States for a partition of the Oregon territory ; all which transactions took place in the year 1818, when as yet Spain had made no transfer or cession of her rights — apj)ear to be as little reconcilable with any regard for those rights, while still vested in Spain, as the claim founded on discovery, exploration, and settlement, accomplished previously to the transfer of those rights to the United States. Supposing the arrangement proposed in the year 1818, or any other arrangement for the par- tition of the Oregon territory to have been concluded in those days, between Great Britain and this country, what would, in that case, have become of the exclusive rights of Spain ? There would have been no refuge for the United States but in an appeal to the principles of the Nootka convention. To deny, then, the validity of the Nootka convention, is to proclaim the illegality of any title founded on discovery, exploration, or settlement, previous to the conclusion of the Florida treaty. To appeal to the Florida treaty as conveying to the United States any exclusive rights, is to attach a character of encroachment and of violation of the rights of Spain to every act to which the United States appealed in the negotiation of 1818, as giving them a claim to territory on the north-west coast. These conclusions appear to the undersigned to be irresistihle. The United States can found no claim on discovery, exploration, and settlement, effected pre- viously to the Florida treaty, without admitting the principles of the Nootka convention, and the consequent validity of the parrallel claims of Great Britain founded on like acts ; nor can they appeal to any exclusive right as acquired by the Florida treaty, without upsetting all claims adduced in their own proper right, by reason of discovery, exploration, and settlement, ante- v^ cedent to that arrangement. in their c In 179 In 18!) branch o In 181 lumbia, t Thisp the perse in 1818, America! pied by 1 These as giving TheB them the attendinj subject, 1 as giving In the navigato in a nati Cook an( to the n( In the followed made kn as the y< one of t! Gray's d In the ' rupted b '■ Chathan With • route pu ' their hoi ! cipal bra i versed a • Thom the nort drah.ed j It wai I stream c : miles fr( j These ' Clarke's ; whole vi i As to ; theresti It wil explorat the Ore! That rest the a claim That, ;. Britain, ] After 1 tive vail will not offered This : negotiai Ontl both pa Ontl while, \ 49°, th( j claim t< I The 1 some fii . and eqi I statemc plenipo Thei Secreta Hon. II ife;-rt,>..^^ iued to pro iloiigiiig to cd acts ol' isive rights emanating same rule, red as cri • d States, be from tbih, ig the Amc- ) yet Si)aiii the Florida ke, and the chmenls on it are consi- irse of tiie )ain, consi- tlic United isioii of the St article of •egon terri- nade on the ictions took lits — ai)i)ear ain, as the the transfer for the par- Britain and 1? ciplcsof the ' of any title orida treaty, ights, is to act to which territory on effected prc- ention, and ts ; nor can ng all claims ment, ante- made known to the world either by the discoverer himself, ov by his Government. So recently as the year 182G, the American Plenipotentiaries in fiondon remarked, with great con eetness, in one of their reports, that, *' respecting the mouth of the Columbia River, we know nothing of Gray's discoveries but through British accounts." In the next i)lacc, the connexion of Gray's discovery with tliat of Lewis and Clarke is inter- rupted by the intervening exploration of jLieulcnant iJroughtou, of the British surveying-ship Chatham. With respect to the expedition of Lewis and Clarke, it must, on a close examination of the route pursued by them, be confessed that, neither on their outward journey to the Pacific, nor on their homeward journey to the United States, did they touch upon the head waters of the prin- cipal branch of the Columbia River, which lie far to the north of the parts of the country tra- versed and explored by them. Thompson, of the British North-west Company, was the first civilized person who navigated the northern, in reality the main branch of the Columbia, or traversed any part of the country drahied by it. It was by a tributary of the Columbia, that Lewis and Clarke made their way to the main stream of that river, which they reached at a point distant, it is believed, not more than 200 miles from the point to which the river had already been explored by Broughton. These facts, the undersigned conceives, will be found sufficient to reduce the value of Lewis and Clarke's exploration on the Columbia to limits which would by no means justify a claim to the whole valley drained by that river and its branches. As to settlement, the qualified nature of the rights devolved to the United States, by virtue of the restitution of Fort Astoria, has already been pointed out. It will thus be seen, the undersigned confidently believes, that on the grounds of discovery, exploration, and settlement. Great Britain has nothing to fear from a comparison of her claims to the Oregon territory, taken as a whole, with those of the United Slates. That reduced to the valley drained by the Columbia, the facts on which the United States rest their case are far from being of that complete and exclusive character which would justify a claim to the whole valley of tlie Columbia; atid That, especially as relates to "Vancouver's Island, taken by itself, the preferable claim of Great Britain, in every point of view, seems to have been clearly demonstrated. After this exposition of the views entertained by the British Government respecting the rela- tive value and importance qf the British and American claims, the American Plenipotentiary will not be surprised to hear that the undersigned docs not feel at liberty to accept the proposal offered by the American Plenijiotentiary for the settlement of the question. This proposal, in fact, offers less than that tendered by the American plenipotentiaries in the negotiation of 1826, and declined by the British Government. On that occasion it was proposed that the navigation of the Columbia should be made free to both parties. On this, nothing is said in the proposal to which the undersigned has now the honour to reply; while, with respect to the proposed freedom of the ports on Vancouver's Island south of latitude 49°, the facts which have been appealed to in this paper, as giving to Great Britain the strongest claim to the possession of the whole island, would seem to deprive such a proposal of any value. The undersigned, therefore, trusts that the American Plenipotentiary will be prepared to offer some further proposal for the settlement of the Oregon question more consistent with fairness and equity, and with the reasonable expectatioiis of the British Government, as defined in the statement (marked D), which the undersigned had the honour to present to the Aniericau plenipotentiary at the early jiart of the present negotiation. The undersigned British Plenipotentiary has the honour to renew to the Hon. James Buchanan, Secretary of State and Plenipotentiary of the United States, the assuranceofhishigh consideration. Hon. James Buchanan, Hfc. P. PAKENHAM. T?*f ir ^1 Map of Oregov Coi3NTinr, June 6.1838. with Report of Senator Lwn LIBRARY OF Number ^ '■> •;«:..■.