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Appleton 4* Co. ^ve latdy puhlisJi HI»f ORY OF OREGON AND CALIFO 10 THE OTHER TERRITORIES ON THE NORTH-V ' COAST OF NORTH AMERICA. ^ , — ed with » Geographical View and Map of those eonntries, vmber of Dooiunents a« proofs and illaitntioiu of the history. BY ROBBRT aBBElTHOW, Translator and Librarian to the Department of State of U. S. One handsome 8vo. Tolume. Price |^ 60. \ *' At a moment when so manjr people are thinking, talUnf, and wriliBf abaut Orfgon it will be a great advantage to all such — and we hope sooe to the author and publlsfi« '. s —to bay and to read this book. It embraces the hmoiy of Oregon and California, at \ the whole history, with proofs and illustrations of the conflicting claims to the power of these countries. It maintains and defends the superiority of the American claim, and eiplains the ithms between us and Great Britain respecting it. No one is really qnall- intelligent opinion on the sul^ect who has not studied this volume, or familiar with the main facts which it reproduces, combines and illustrate!. which accompanies the work, embraces the whole division of the continent 'Gulf of Mexico, Lake Superior and Hudson's Stmits, iuc jding also the the Arctic Sea, a part of Asia, and tiie Handwieh Islands, it m well executed iper plato, and greatly tkrilitates the comprebeosioo of the claims diMussed In Cm: "W^.: J[|iaiursr. (8|c WaXUn SktMtn IRebetmnent 3filqpsvt.) or TBI EXPLORINO EXPEDITION TO THE ROCKY MOUNTAINS, IN THE YEAR 1842, AND TO OREGON AND NORTH CALIFORNIA IN THE YEAR 1843-4, ST BBITTET-OAPTAIN J. O.FREMONT, or THX TOrOOEAPHICAL CMOIXBERS. Republished ftpom the official copy ordered to be printed by the U. S. Sena' One Tolune of near 200 pages. Price 26 cents, paper cover, or printed on thick paper, bound. Price uB cents. " Cnpioaa extracts from this Narrative have been published in this paper, and v maeb relislMd by all clasies of readers, on account of the interest of the advent th«y detailed, their lively and araphic description of scenery, and the curious and vs ble hifnrmatioe they imparted in regard to the vast and little known rMioa streici from Missouri across the contfaient to th«Pacific. The report, first puUWied by onl< the U. B. Senate, hss been republished ih the cheap form by Messra. Amrcoa lb ' . New- Vork, and makes by tn the most usefUl and hiterestiog book of trmrcto tha '^a the American press in several years. Aside from the kitriasie mMt t> -'ill attract addhional attention now, from the Interest exsMad by the O d the general desire to obtain Ail I and exact iuttarmatkm la.nBMd to t ■ .• ry fairly priated, and aoM for 39 centi."— iltr/oto Ctmmiimi»eH mf THE OREGON TERRITORY, ITS HISTORY AND DISCOVERY; INCLUDINO AX ACCOUNT Of THE CONVENTION OFTHE ESC URIAL, ALSO, THE TREATIES AND NEGOTIATIONS B K T W B I it THE UNITED STATES AND GREAT BRITAIN, HXLD AT VARIOUS TIMES FOR THE SETTLSMENT OF A BOUNDART LINE. J * AMD AN EXAMINATION OF THE WHOLE QUESTION IN RKSPKCT TO FACTS AND THE LAW OF NATIONS. BY TR AVERS TWISS. D.C.L., F.R.8., ntOrBISOR or POUTICAL BCOXOMY IX THB rKIVBKHlTT OP OZPORO, AXB A0VO1ATB IN I>OCTOK8' COMMONS. NEW. YORK: D. APPLETON & CO., 300 BROADWAY. PHILADELPHIA: GEO. S. APPLETON, 148 CHE8NUT-8TREET. CIHCINNATI.— DXRBY, BRADLKT k, CO., 113 MAIN • STatlT. MDCCOXLVI. .j ^ f^ r^ iii Mt i -,?+ .'«. •■*■ i if ' •>. "t.-?t£t ■^ Jl' ."*-'- "S •<•' *^1-. PREFACE. ..ys ■-. "*' ■ '■ '■■«?' Si 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 unaypii|ajt>l7 assumed a much larger bulk than was antioil 1* %' -^-»*-*--cr,'-- ^ *-,3fr^'«Kto»-- •*'^r^*!"^'-^ I VI PREFACE. H the author when he commenced the inquiry : it is hoped, however, that the arrangement of the chapters will enable the reader to select, without difficulty, those portions of the subject which he 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 author 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 supposition 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. Buchenan 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 1'ki:fac£. Vli 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 different 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 offered itself, in the chapters on the several negotiations. The author, ♦ Maldonado's pretended Voyage bears the date of 158S. In the copy of Mr. Calhoun's letter, circulated on thi» side of the Atlantic, it is referred to the year 1528. t I Vlll rUEFACE. however, has introduced in this chapter, what appears to him to be a couchisive 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 thou2;htj 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 familiar 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. inserted which have a bearing 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 author'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," PREFACE. though this is not said by way of disparagement to it. The Society, in its maps, has carried the boundary line 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. 22, 1846. .W CONTENTS. CHAPTBR PAOB 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 Orejjon or Columbia River - - - - 94 VII. The Acquisition of Territory by Occupation - - 1 1 1 VIII. Title by Discovery - - - - - - 115 IX. Title by Settlement 123 X. Derivative Title 129 XL 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 t f I L \ THE OREGON QUESTION. CHAPTER I. THE OREGON TERRITORY. North-west America. — Plateau of Anahuac. — Rocky Mountains. — New- Albion. — New Caledonia. — Orcijon, 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 Vald6s. — Journey of Mackenzie in 1793. — The Taeoutchc-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, tho Astronomer of the North-west Company, down the North Branch of tho Columbia River, in 1811. — Expedition of Lewis and Clarke, in 1805. — Tho Missouri Fur Company, in 1808. — Their First Settlement on the West of tho Rocky Mountains. — The Pacific Fur Company, in 1810.— John Jacob Astor, tho Representative of it. — Astoria, established in 1811. — Dissolution of the Pacific Fur Company, in July, 1813. — Trans- fct of Astoria to the North-west Company, by Purchase, in October, 1813. — Subsequent Arrival of the British Sloop-of-War, tho Racoon.— Name of Astoria changed to Fort George. NoRTH-wESTER>' AMERICA is divldcd ffom 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 bo- 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 sur la Nouvelle Espagne, 2 14 NOKTH-WEST AMERICA. 1. i., c. 3,) as well as in a copy of Mitchell's Map of xVorth America, publiahed 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 Mad re a little north of the par- allel of 19", 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 thoga 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 contusion, 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 word, 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 bo 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 with 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 vicwj a continuation of th(? South American Andes, : I ROCKY MOUNTAIXS. 15 Between this great chain of moui tains and the Pacific Ocean a most ample territory extends, which may be regarded as divided into three great districts. The most southerly ot' these, of which the northern boundary line was drawn along the parallel of 4"J^, by the Treaty of Washington in 1819, be- long to the United States of Mexico. The most northerly, commencing at Bohring's Straits, and of which the extreme southern litnit was fixed at the southernmost point of Prince of Wales's Island in the j)arallel of 54^ 40' north, by treaties concluded between Russia and the United States of America in 1824, and between Russia and (treat Britan in 1825, forms a part of the dominions of Russia; whilst the intermediate country is not as yet under ihe acknowledged sovereignty of any power. To this intermediate territory diflerent names have been assigned. To the portion of the coast between tlie parallels of 43° and 4^°, the British have applied the name of New Albion, 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 177C, to Captain Cook, directed Iiim "to proceed to the coast of New Albion, endeavouring to fall in with it in the latitude of 45°. (Introduction to Capiain Cook's Voyage to the Pacific Ocean, 4to, 1784, vol. i., j). xxxii.) At a later period, Vancouver gave the name of New Ceorgia 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. Grcenhow, 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. <4 10 OREGON, OR OREOAN. i f\ ' '" I 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 succe ?d in penetrating to the Pacific Ocean, but he first made known, or at least established 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, after 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 Columbia River, from the name of the American vessel, " The Columbia," which ' i ^• EXTENT OF OREGON. 17 )re pro- led, but ction of ative of )ston in tain, on pi, with hat vast Pacific Df north lish this istablish n, which urse bc- from the words is did not rst made jnce of a interior, far from r side of run into > Pacific the na- lelf near in,1781, In of the time ac- is latter aced the lie Flat- ore pro- if which |the base coming Pacific lis consc- ,ig really It is best [lea, it is rer, from '" which first succet ded 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 bo amongst the most distinguished of American poets : — " Take the winga Of mominpr, ind the Barcan desert jiicrcc, 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 IMexico 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 1-' 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 souih-east to north-west. The greatest breadth, however, appears to comprise about 14 degrees of longitude, and the least about 8 degrees ; so that we may take 11 de- grees, or 6G0 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, which 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 i;i 1 4' 18 run TUAUE. 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 fatal 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 178G. 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 Hpain 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 Anian, 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 favourable results of these voyages had promoted the progress of geographical discovery by stimulating fresh expeditions. In the I7th century, a nar- rative was published by Purchas, in his " Pilgrims," profess- ing that a Greek pilot, commonly called Juan de Fuca, in the STKAITS OF JUAN DE FUCA. 19 service of tlie Spaniards, had informed Michael Lock the t'Jdor, whilst he was sojourning at Venice in 1596, that ho had discovered, in 1592, the outlet of the Straits of Anian, in the Pacific Ocean, hetween 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- dcr 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, Tacoutchc-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 n ;■ i I*!!' 20 NOKTH-WEST COJIl'ANY. ■ ! 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. This mis Ihr jirst exjjcdifUm of civilised men 1hrouy 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 wo 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. The 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 voyageurs or boat- men. The natives being thus no longer called away from their pursuit of the beaver and other animals, by the neces' MR. THOMSON 8 MISSION. 21 cd Fra- jr about reached v'cyed a by him scd men t did not , though th Van- Captain snded, in traits. 1 a wide erchants ement in cation of y. This upon tho ually ab- lot, how- tn it soon lay Com- id had all of North in. Th9 irity of a shores of by the ig furs to le of tho months, [ear their interior [•oduce of 'ompany [ed their bargain Itablished superin- lans, and or boat- /ay from le neces- I I sily of rosorting as heretofore to the fiictorirs of the Hudson's \ii\y Company, continued on their hunting grounds (huiug tho wjjole year, aM«l were teuii)te(l to kill the cub Jind lull-grown animal alike, and thus to anticipate the supply of futiue years. As the nearer hunting grounds became exhausted, the North- west Company advanced their stations westwardly into re- gions previously unexplored, and, in 180(5, they j)ushed for- ward a post across the Rocky Mountains, through the passage where the Peace Hiver descends through a deep chasm in tho chain, and f«inned a trading establishment on a lake now called Frazer's Luke, situated in ot^ N. L. *' 7Val branches to their sources, and then to seek and trace to its termination in the Pacific some stnuim, whether the Columbia, the Oregon, the Colo- rado, or any other, which might offer the most direct and practicable water commimication across the continent for the purposes of commerce." The party succeeded in passing the Rocky Mountains towards the end of September, 1805, and after Ibllowing, by the advice of their native guides, the Koos- kooskee River, which they reached in the latitude m^ 34', to its junction with the principal southern tributary of the (Jreat 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 Pacitic Ocean, where it was found to empty itself, in latitude 40^ 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 IjcIow 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. Both parties united once more on the banks of the Missouri, and arrived in safety at St. Louis in September, 180(\ The reports of this expedition seem to have first directed if K MlSSOVlti FUR COM TAN V. 23 '^l tho attention of traders in the Lnittd States to the hunting fii junds of Oregon. The Mis:,onri Fur Company was formed in 1SU8, and Mr. Ilenr}, "ue of its igents, established atrad- in«^ post on a branch of tin Lewis River, the great southern arm of the Cohimiiia. This scrms lu hare hern the fnrliest ex- lithlishme.nt of any kind made by cilizrns of the United Stafr/t west of the Uocky Mountains. The hostility, however, of the natives, combined with the difTicully 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 oliject 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 Mas 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, JM'Dougal, Stuart, y him in 1589. It is a plain and succinct account of what the "THE FAMOUS VOYAGE." 29 !>l )\V s uc- writcr 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 tho Famous Voyage has no author's name attached to it, cither in the first edition ofloSO, or in any of tho later editions ofllak- luyt, the more so because Ilakluyt himself, in his Address to the favorable reader, prefixed to the edition of 15S9, leads us to suppose that he was himself the author of the work. " For the conclusion of all, the memora])lo 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 want of the first made by Sir Francis Drake will bo the lesse ; wherein I must confess to have taken more than ordi- nary paines, 7neaning to have inserted it in this worhe ; 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. 858, art. " Ilakluyt." It is printed appa- rently on the same kind of paper, with the same kind of ink, and in tho same kind of type with the rest of the work, but tho signatures at the bottom of the pngcs, by which term are meant the numbers which are placed on the sheets for the printer's guidance, do not correspond with tho general order of the signatures of the work. This fact, combined with tho circumstance that the pages are not num]>ercd, furnishes a strong presumption that it was printed su))sequently to tho rest of the work. On the other hand there is evidence that it was printed to bind up with tho rest, from tho circumstance 1 I n I I fi ji:; •f sj I ill ^ 30 FltANCIS I'KETrif. that at the bottom of the hist page the word " Instructions" is printed to correspond with the tirst word at the top of p. 644, being the title of the next treatise — " Instructions given by the Honorable the Lords of tlie Counseli 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 doulited that this account is the narrative about which Hakluyt 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 Ilakluyt'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 Biographie 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 Etiennc Marchand," with which he published some observations of his own, intitled " Recherches sur les terres de Drake," enumerates briefly 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 IGOO." 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, Seij/n^ i..- de Courtomer, celui-ci engagea Francois de Louvencouri, Seig- neur de Vauchelles, li en faire un extrait en Frantjais sous le titre do ' le Voyage Curieux faict autour du Monde par Fran- qois Drach, Amiral d'Angleterre,' qui fut imprimc chez Ges- selin, Paris, 1G27, en 8vo." ** « »- VOYAGE DE DKACII. 31 tioiis" is fp. 644, Ml by tho on, Esq. 3nde(l to larrativo ordinary of Christ I imbued lies, and ;ollectioii Voyage, vork, will he claim )e utterly o dispose low's au- e conjec- 3d below. Sir Fran- rics, the ty. Fleu- )graphcr, i intitled ," with intitled briefly in yage, but Famous in every lyt which res qu'en omprised ard, (em- n, en ay- ir«ii(.." de in, Seig. is sous lb mr Fran- hez Ges- M m It might be supposed from this statement, that the work of M. «lo 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, tho only allusion to J)rake's companion which is to bo 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 dc'die, parcoijue c'est vous que m'aviez donnc', m'ayant fait entendre, ; ROUTHKHN TERRA IXCOGNITA. 87 )rk is a Dut care* two nar- as " tho iinpanicd iring tho iccounts, following sseJ, Mr. id di fill so nilations, hich nro contains Voyage, jn verba- nt terms. mains in c derived Barrow, cncss of ty of the ose who s obser- Encom- to be a voyage. 1 before ivcs, and e in tho . Green- om tho ividently for in- e World or with Straits from tho Hind, •° south 'I ■V.lizabeth, to the island of Mocha, in M^o :]()' south, whereas the' World liUcompassed 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 5.1'' south, on which height thev found shelter for two days amonjrst the islands, but were again driven further to the southx^ard, and at length fell in with the uttermost part of land towards the South Pole," in u])out r)(P south. Here Fletcher himself landed, and travelled to the southernmost part of the island, be^'ond which there was neither continent nor island, but oiu^ wide ocean. We altered the name, says I'letcher in his MS. journal, from Teri-a In- cognita, to Terra nunc bene; (.'cguita. Now this accoiujt in the World I'licompassed, varying fo totally from that in the Famous Voyage, is fully borne out by the positive evidence of Nuuo da Silva, who says, that after losing sight of another ship of their company, the Admiral's ship being now left; alone, with this foul weather they ran till they were under .17'^, where they entered into tho haven of an island, and stayed there three or tour days. The Famous Voyage would lead the reader to suppose, that after leaving the Bay of Se- vering of Friends, the Fli/abcth and Golden Hind were driven in comf)any to 57^ '20' south ; but it is altogether contrary to probability that Clift'e should have 'nutted the fact of the Eli- zabeth liaving 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 S(>ptember with those of the storm after the 8th of October. This is a very striking li' ' i,t i. 41 i r 38 FLETCIIEll S MANUSCRIPT. u .* ( .■ 1 .:||f| ' ' :■ > '» '• ' ; ■ ( ■■ ■■ i i i: . r 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 Nuno 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 bears 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 Highncss'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 Er.gland, 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 foUowi." LOSS OF THE MARIGOLD. 30 on some time : it is The work appears to have been very carefully executed by Conyera, and is illustrated with rude maps and drawings of plants, boats, instruments of music and warfare, strange ani- mals, such as 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 bo a faith- ful copy of Fletcher's MS. There is no date assigned to Fletcher's own MS., but wo 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, Clifl'e, 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, Nuno 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 ho writes in his journal, " About Avhich time the storm being so outrageous and furious, the barke Marigold, wherein Edward Bright, one of the accusers of Thomas Doughty, was captain, wi!h 28 souls, was swal. m i«t i h : 40 -•n'o NORTHERN LIMIT OF DilAKE S VOYAGE. 1 u ,j :XI I' i ■ ! 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, (S^c." 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 docs 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^° 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 irrccon- cileable. In the Famous Voyage, as amended in the edition of 1600, we have this statement: — " Wc ♦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 coldo that our men, being greevously pinched with the same, complained of the extremitie thereof, and the furlher vc n-ent, llie more the cold increased iqwn 7fs. 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 3S 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 42d parallel of north lat., that the cold was first folt so intensely l)y Drake's crew, and that the further they went, the more the cold increased upon them ; so that from the latter passage it may be inferred that they did not discontinue their course at once as soon as they reached the 43d parallel. MB. GREEMIOW 8 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 lonirilude, 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 3S, 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, ])ecause it is im- probable that a vessel like Drake's could have sailed through six degrees of latitude from the .3d to the 5th 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 .Tune, as is implied by the circumstances narrated, and there- fore they must bo "direct falsehoods." I ii| i 3 M - I H ti': I ■ * 42 INTENSE COLD. i ' iliffllM! m The first objection has certainly some reason in it ; but in rejecting the World l^^ncompassed, Mr. Greenhow 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 authorof 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 which elapsed after Drake turned back, until he reached the port. There is, therefore, the improbability of Drake's vessel, ac- cording to Hakluyt, making so little way in so long a time before a wind, to be set ofi' 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 di?^ posed 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 .^ v«. STOW, THE ANNALIST. 43 would 1)0 foreign to the present inquiry, the fact, to whatever extent it be adinitted, 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, who 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 [ I;' i'l ii ; '1 li i^ I I T ' .1 ■ \ ' i 44 JOIIA DAVIS. ;h ••1 i; I «h! i :i i ^ f it . ! ini giving some account of the dangers which Drake had sur- mounted in passing through tlie 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 wo 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 (p. 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 n carries l)retended between the 17th degree )f latitude and the 38th." But surely Davis might use tiic expression, " coasted all the western shores of America," without being supposed to pretend that J)rake 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, l)ocauso ho 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- west 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 bo 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 bo 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 bo amiss to remark, that in the map which Mr. Ilallam (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 Ilakluyt of 1589 : in other copies, indeed, there is the usual inferior map, in which C. Mendocino is placed be- tween 50° and GO^. The work, however, in which it has been examined for the present purpose, is Hakluyt's edition of IGOO, 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 1G15, 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. W I! I'! 40 JOHNSON 8 LIFE OF DRAKE. I* ' .1 ! ■] , i? ililii I, 11 j! ■! 1 i 1 i h M ..■: 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 Hakluyt'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 enti led 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 J une, being then in the latitude of 38°, 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 w'ere 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 stiflT with frost, and the moat 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 38° 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 authority from which ho derived his information as to the lati- 1-1 irs intcr- Hakluyt. followed 1 several opinion, vn. He the Gen- aniongst lan thirty e weight life might Is at pre- GJuatulco, ithout ap- following hey were ley were Lsed upon te sailors w'ere the f the re- the ropes conveyed or in 38° itleman's in nurn- felt so ^hat any may for le press, Inchor in iw were that Dr. Intention- )rthward e than r'erity, or the latter in order [se to the the lati- "ii ■•'■t f % MARCIIANU S VOYACr. 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 138^ 30' us the latitude of tiio convenient and lit harbour, wiiercas the Famous \'oyagc 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- seciuencc despatched in 1790, under Captain Etienne Mar- chand, who, after examining some parts of the north-west coast of America, concluded the circunmavigation of the globe in 179'i. Fleurieu, the French hydrographer, published a fidl 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, without 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. 2'23) speaks highly of Flcurieu'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 ol)servations at variance with truth and justice." It may be added, that at the time when ho 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 years 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 may r! . rl M ft' i I ?!'; f.i ii- ■ 1 "'° ■; ! ■ ' 46 HUMBOLDT 8 NEW SPAIN. Ill : • ' til :i claim for himself is the having discovered the portion of coast comprehended between the parallels of 43^ and 4^:^^ ; to which, consequently, the denomination of New Albion ought to be limited, without interfering with the discoveries of preceding navigators." (Relacion del Viago hecho por las Goletas Sutil y Mexicana en el ano de 1792. Introduccion, pp. xxxv. xxxvi.) To the same purport, Alexander von Humboldt, in his Essai Politique sur la Nouvelle Espagne, says : — " D'apros des don- nfees historiques certaines,la denomination de Nouvelle Albion devrait etre restreinte a la partie do la c6te qui s'etend depuis 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 c6toya 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, a'! who had criticised his work were silent, or carefully omitted to notice the principal arguments ad- duced by the author. We ma/ conclude with observing, that on reviewing the evidence it will be seen, that in favour of the higher latitude of 48° we have a wall 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 DRAKe's EXI'EDITIOX. 4D and laborious Alexander von Humboldt. On the opposite sido stands HaUiuyt, and llakluyt alone ; for Camden and Pur- clias both followed Ilakluyt implicitly, and though they may be considered to opj^rove, they do not in any way confirm his account ; while Ilakluyt himself has nowhere disclosed his sources of information, and by the variation of the two editions of his vork 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 mado evident the doubtful character of the information on which ho relied, and has himself abandoned the version of the story, which Camden and the author of the Vie de Drach, have adopted upon his authority. HI m , \ Ill 60 I N CHAPTER III. I , ON THE DISCOVKRY OF TIIK NORTH-WEST COAST OF AMERICA. The Voyage of Francisco dc Guallc, or Giili, in 1584. — Of Viscaino, in in 1598. — River of Murtin d'Ajruilar. — Cessation of Sj)anish Enterpri- BCB. — Jesuit Missions in California in the ISth centurj. — Voyapc of llrhrinfj and TchiricofFin 1741. — Presidios in Upper California. — Voy. age of Juan Perez in 1774 ; of Hcceta and de lu Bodega in 1775. — Ilecetu's Inlet. — Port fliicareli. — Bay of Bodega. — Hearne's Journey tu the Coppermine River. — Captain James Cook in 1776. — Russian Eslab- lishments, in 1783, as fur as Prince William's Sound ; in 1787, as far as Mount Elias, — llxpeditions from Macao, vmder the Portuguese flag, in 1785 and 178G ; under tliat of the British East India Company in 1786. — Voyage of La Perousc in 1786. — King George's Sound Com- pany. — Portland and Dixon, in 1786. — Meures and Tipping, in 1786, under Flag of East India Company. — Duncan and Colnett in 1787. — Captain Barclay discovers in 1787 the Straits in 48° 30', to whicli Meares g-vca the nainc of Juan de Fuca in 1788. — Prince of Wales's Archipelago.— Gray and Kcndrick. The Spaniards bad 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 way thither across the Pacific. It was not, however, till 1564, that they succeeded in establishing 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. Hakluyt 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, iScc., in the Year of our Lord 1584." It purports to LIXDSCIIOTEN. 61 COAST OF f Viscaino, in mish Entorpri- J- — Voyape of lifornia. — Voy. [ja in 1775.-- le's Joiimoy tc fussiau Estab. II 1787, as far •rtupucse flapr, a Company in Sound Com. •injr, in 17»6, ■tt in 1787.— 30', to which ;c of Wales's ^ast Indies, » from sail- 'J liad, in ay thither , that they ippine Isl- lally from ade winds )out three that time, ti order to ch carried record of has pub- lof IGOO, erformed tain and irports to have boon translated out of the ori;,Miial S[)anisli, vorliatiin, into liow Dutch, by J. II. van Liiidschoton ; and thonco into Kn;j;Ii.sh by Ilakluyt. Aoooalinn; to this vtM'sion of it, GikiMo, on IjIs return from .'Macao, njade tho coast of New Spain "under scven-and-thirty (K'greos and a half." The author of the '* Introduction to the Journal of (Jaliano and \'ahles" has substii'.'ted 57^ for JH.] degrees in (Jualle's, or rather (iali's, account, i^ithout stating any reason for it. Mr. Greeniiow, indeed, rofeis to a note of that author's, as intimating that ho relied upon the evidence of papers found in tiio archives of tho Indies, l)rt on examining the note in p. xlvi., it evidently refers to twc letters from the Archbi.shop of Mexico, then Viceroy of Now 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 staged to have consulted CJali upon his project, but the author of the "Introduction" specially alludes to Lind- schoten, as the person to whom the account of (iali's Voyage in liyS'2 was due, and refers to a Froiu h Translation of Lind- scholen's work, under the title o! •• Lo Grand Routier do Mer," published at Amsterdam in lOUS. But Lindschoten's original work was written in the Dutch language, being inti- tled " Ileysgeschrift van de Navigation dcr Poit igaloysers in Orienten," and was pidilishcd towards the end of the sixteenth century ; and two English translations of Gali's Voyage im- mediately apj)eared, one in Wolf's edition of Lindschoten, in 1598; the other in the third volume of Ilakluyt, 159S-1G0O. Lindschoten's own Dutch version was subsequently inserted in Witsen's "Norden Cost Tarterye," in 1692. A.'l 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. 1G4. Tho 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 lor 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^° N., though nothing were known of the extraordinary high mountains which arc on the western side of America in that :ii •It i't • "I I! . i i LE GRAND KOUTIER DE MER. ili ' 1< rt ■ 1 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. Eyri6s, 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 Iloutier do Mer are ; "Estans venus suivant ce mesme cours pros 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, ornc de nombre d'arbres et en- ticrement 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 thu 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 conclusive. M. de Contreras, Archbishop of Mexico, was Viceroy of New Spain for the short sj)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 8th 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 Viceroy, certainly before he submitted his planr 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 by 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, K£'4i*fi^' 1 JIARTIN D ACUILAR. 53 ranslator has in reaching idering "east 1 north-east " iree points in r north than graphie Uni- ! of the varia- author of the the French the French Estans venus Vouvelle Es- pprochasmes irbres et en- is fallen into ve made the itive, in com- roject of the shed, instead him. That from the ac- larefuUy ex. he Voyage " the Dutch rcumstance, Archbishop )rt sj)ace of le King of explore the )roval, bore Gali com- and had re- Archbishop before he itured after M. Eyries' :quaintance author of voyage was expedition ew Spain, V ?• 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 thi- 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 liritish 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 desp^vtched 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 4!2d parallel, to which he gave the name of Cape Sebastian." The smallest of his three vessels, however, conducted l)y Martin d'Aguilar and Antonio Florez, doubled Cape Mendocino, and reached the 48d 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 bo the western ex- tremity of the long-sought Straits of Anian. The subsequent report of the captain of a Manilla ship, in 1020, according to Mr. Greenhow, led the world to adopt a diflerent view, and to suppose that it was the mouth of a |)assage 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 Guillaumo de Lisle, published in Paris in 1722, California a peninsula, Capo V] Ol J 1 it ^fp 54 BEIIRIXO AND TCIIIRICOFF. i i'iiti ill •P I! I , i: I; II I I I' I h t . , . hi Blanco a headland in 45*, and near it nr. irked " Entree dc- couvertc par d'Ajruilar." With Gali and Viscaino terminates the brilliant period of Spanish discoveries along the north-west coast of America. The governors of New Spain dm'ing 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, ]>y 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 sul>jected, 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 may be 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 ho 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 54.J 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 23, 1822, in British and Foreign State Papers, 1821-22, p. 483 ;) but this has been disputed. Mr. Greonhow considers, from the descrip- tion of the latitude and bearings of the land discovered by him, ■f^i ' y fW !4 JUAN PEREZ, 55 Hntrce dc- t period of America. of the sev- senth, con- 3ninsula of 3rs, which, n in 1616, 311, carried frequency. jcted, by a ition at the iguay em- a chain of de of Cali- •ed to have les III. in f from the ew World. every that [id Tchiri. tka, under ard is not of north , visible 1 he gave The ac- turalist of 1 in 1795, )np of the and 55^ wrecked, lavigator. ward, and 3 discov- , (Letter the Sec- n British this has descrip. d by him, in i'>H 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'lslo, the astronomer, on his return from St. Petersburg, r vived 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 c-v>.st in Upper California, in the interval of the ten years imic: •' Iv preceding 1779. Of these San Diego, in Si*^ 39' 3/ , /r 5 the most southerly ; San Francisco, in 38° 48' 30", the moat 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 ho 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 m i jl I- ^ ■ \\\ ,.**■ i I 56 MAURELLE S JOURNAL. I ^ * < y. H 5 ni 1 ■ ■ ■' ili^^ l,;i|: ■ I ■ I. ■.Ih i ' ' 1 ' ' 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 Capo 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 which 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', whe.-e 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 M il! 31' nod the true s, after about me of Perez, vy of Nootka itler general le Spaniards of the Straits 56 Martinez, according to ards that he the land be- y marked in aits as Cape claim in the cana, nor in litlon sailed leceta, Don ladra. The t silence as of Antonio ited as pilot o the hands an English ere are four Irid. From ible extract : discovery to which 3y fixed up 793. They again till shore in uca, which 1766, be. ora's men 20', whe.e rial Eagle ir voyage his crew, separated On his e 10th of 'S*. i PORT DE LA BODEGA. 57 ■iland August, in 49^ 30', on the south-west side of the great isl now known as Vancouver's Island, and passing the part which Porez had visited, canio upon the main land below the en- trance of the Straits of Fuca. On the 17th of August, as ho was sailinj; alonjj the coast between 40° 40' and 40° 4', according to Heceta's own report, or in 40 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 river, 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 l)ctween 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 nigiit, swept him too far to leeward to allow him to examine it any further. Ileceta named the northern headland of the bay, C. San Ro(|ue ; and the sojtliern iieadland, C Frondoso; and t(j the bay itself he gave the name of the Assumption, though, in the Spanish charts, according to IIuml)oldt, it is termed " TEnsenada de Ezeta," Heceta's Inlet. Ileceta 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 ni(\an time, had stretched out to 56°, when he unexpc^ctedly made the coast, 135 leagues more to the westward than Hellin's chart had led him to exprct. He soon afterwards discovered the loftv conical mountain in Kiii"- (Jeorge III.'s Arcliipc^lagi^, to whicli he gave the name of San Jacinto, and wiiich Cook subsecjuentiy called Mount Edge- cuml), and having reached the 58th parallel, turned back to examine that [)ortion of the coast, where the Uiode los Reyes was placed in the story of the adventures o*' Admiral Fonte. Having looked for this fabulous stream in vain, they landed and took possession of tlu^ 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 I^ntrada de Perez, north of Queen Charlotte's Island ; but, though coasting from 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 they made *■ i H > t m 11! n 1 1 !!'■ ■\\u 11^ i' iV. . i: Ml !' 58 CAPTAIN COOK S VOYAGE. once more in 45° 27' ; from which parallel they searched in vain to 42° for the river of Martin d'Aguiiar. 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 20,000Z. 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- ward 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 norih 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 1770, 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 ^earch for a river or inlet w^hich might communicate with .tison's Bay. Ho was further directed to take possession u. ♦ho name of his sovereign, of any countries which he m ^ht discover to be uninhabited ; and if there should be inhabit tnts in any parts not yet discovered NOOTKA SOUND. 59 y searched in In the latitude ^■d bay, which but it proved lart, so De la <; noted in his careened his of Sir Francis well as from 3 by direction 3rn regions of istence of the Bay and the e Compitny's lurneys, sue Coppermine tide was ob- iver to be in mself, by his the two seas hsed. It ap. 1 been voted, SCO very of a lips belong. 776, this re. esty, which jetwcen the el norih of ursuance of pedition to ; and Cap. xpedition in to proceed V Albion, in all interfer- to explore up to 65° ,' niet which as further vereign, of bited ; and discovered •1 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 I60'«i, 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 alford Cook any safe directions. The expedition reached the shores of New Albion in 44° north, and thence coasted at some distance o i i . o 48°. Cook arrived at the same conclusion which lleceia had adopted, that between 47° and 48° north there were no Straits of Eu- 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 ol)tained 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 48° and 55° prior to his visit, yet their discoveries had not bc(Mi 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 Cognitum,"' • ,. ,{' |Hi'; ii . 60 RUSSIAN ESTABLISHMENTS. y liiiii •inn 1 UH t [ M t 'Ii f.! h;^ Piiii |: . I! ii Pi:: ;!!U On the return of the vessels engaged in this expedition to Kngland, where they arrived in Oetober, 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 ...e information which they had obtained when Captain King, on his way homewards by China, touched at the harl»or 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- aska and Prince William's Sound. Mr. Greenhow (p. 161; assigns to this period the Russian establishment on the isl« of Kodiak, near the entrance of the bay called Cook's hay, 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 1786, 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 off the coast, and cast anchor in a bay near the foot of Mount Fairweather, in about 59°, which he named Port des Franeais. 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- :-|s^ KINO OnOlKJli S SOUND COMPANY. 01 rd, an association in London, styled tlio Fviii^ (jJeorfjc's SoiujJ ('(wnpany, (lis|)atcli(>d two vrssels inulor the coinnKUid ot'Cap- tains Dixon and I'oitlock, 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 ('ook's River in Jidy 1780, where they met with Russian traders, and intended to winter in Xootka Sound, hut were driven oil' the coast by tempestu- ous weather to the Sandwich Isles. Returning northward in the spring ot 17f^7, they found ('aptain Meares, with his vessel the Nootka, frozen up in Prince VVilHauj's Sound. Meares had left Calcutta in January 1780, whilst his intended con- sort, the Sea Otter, commanded hy Captain Tip|)ing, 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 Xootka. lioth these vessels sailed under the flag of the I'iast India Company. Meares, after having with some ditlicully got clear of the Russian establishment at Kodiak, renched Cook's River soon after Dixon and Rortlock 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 davs befon^ his arrival. lie 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 Xootka appear to have been the two great strtions 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 t!ie coasts. Thus, whilst F*ortlork remain- ed between Prince William's Sound and Mount St. Elias. Dix- on directed his course towards Xootka, and being convinced on his voyage, from the reports of the natives, that the land ])etween ')2° and ~:>4° was separated froin the continent, as La Perousc had suspected, he did not hesitate to call it (iueen m Pi ; 4 ' 11 HI 1 ' : i ' , ■ ■ ■«■•' 62 MEARES ASD TIPPING. u^W I li iiihi nil'! Hi hi i Charlolto's Island, from the name of his vessel, and to give to the passage to the northward of it, whici is marked on Spa- nish maps as the Entrada de Perez, the name of Dixon's En- trance. Before Dixon and Portiock ([uitted 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 par* 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 seemc d 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 178"). Two vessels, however, require no- tice, — the Washington under Captain Gray, and the Colum- ■i I ■(• GRAY AND KEXDKICK. 03 i to give to cd on Spa- )ixon's En- coasts, in olits of the tho Prince yr the King itains Dun- ler Captain tor the tirst To a boat's tres assigns imself gave rom the old •ved in Pur- ges, p. Iv.) the Nootka, ; more upon led the Fe- icao, under jrmer being |to make for to join her h-west Pas- laptain Dun- lail through Island from iitions of La I, appears at more care- ?d the group lales' Archi- iiic d to some e to tho ex- Ived the ex- liral is de- imunicating to observe, i 4 ])la undor Captain Kendrick, which wore dospatclicd from Boston, unrirr tho Aniorican Hag, in August, IT"^?. Cap'ain Gray reached Nootka Sound, on Sept. 17, IT'-S, and touud M earcs prepann ir to launch a small vessel called the Xurth- west America, which he had built there. 'I'he Columbia does not appear to have joined lu»r consort till after the de- parture of Meares and his companions. Meares himself set sail in the Felice for China, on Sept. 2IJ, whilst liie Ipliigenia proceeded with the North-west America to the Sandwich Is- lands, and wintered there. In the sjiring of 1789, the two latter vessels returned > Nootka Sound, and foiuid the Co- lumbia had joined her consort the Washir)gton, and both had wintered there. The North-west America was despatched forthwith on a trading expedition northward, whilst the Iplii- 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 Hritain 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 rooierved, as in- troductory to the Convention of the Escurial, which will be discussed in a subsequent Chapter. t s III • i' litted in this rade subse- J require no- (the Colum- I It H ■I ■ 04 CIIAPTKR IV. )^ ,1 ri J ;! :»' :i; Ml : i J ON Tin: PRKTENDKD DISfOVKRIKS OF TlIK NORTH-WEST COAST. Voy. Mrmoir of Lorenzo Ferrer ]\Ial(lonndo, in 1588. — Voyage of the D bicrtii and Atrevida, in 171)1. — Tale of Juan de Fuca, in 15!)2. — .^ agcB of MoarcB, Vancouver, and Lieutenant Wilkes. — Letter of Admi. ral Bartolemd Fontc or dc Fucntcs, in IGIO. — Memoir of J. N. da I'lslc and Fli. Ijuaclic, in 1750 California discovered to be a Penin. aula in 1540; reported to be an iKlaiul in ICiiJO ; re-explored by tho Jesuit Kuhn and others, in iTOi-iil Maps of the sixteenth and Beventecnth Centuries. — Fonte's Letter, a jeu-d'esprit of Petiver, tho Naturalist. The general belief in the existence of a North-west passage from tiie Atlantic to the Pacilic Ocean in the direction of Cas- par de Cortereal's reported Straits of Anian, led to the circu- iation of many false accoinits 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 employnicnt, as well as immediate emolument. A memoir of this kind is reported to have been laid bef«)re the Council of the Indies at Seville, in 1609, by Lorcn/o Ferrer Maldonado, who profess- ed to have sailed in 158!i from Lisljon to the coast of Labra- dor, and thence into the Sintli Sea through a channel in 00° north latitude, corresponding to the Strait of Anian, accord- ing to ancient tradition. He petitioned, in conseijuence, 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 Ibth century. Tho 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 lufantado at Madrid, tho other in the Ambrosian Library at ■ M : 1 i *»> DESCUHIEUTA. AND ATUKVIUA. 05 af the Dcscu. 1592. — Voy. ;Ucr of Admi- ir of J. N.da ;o br a Pen in- plorcd by tho Bixfcentli and f Potiver, tho 'est passage ition of Cas- to the circu- "the desired iiss seem to lire, through mploymciit, this kind is 10 Indies at vho profess- it of Labra- nnel in G0° an, accord- [uence, that rusted with defend the !S, accord- of the Su- nd intelli- |tury. Tho II of the au- ejected his d to exist ; e Duke of Library at i Milan. Tho f »rmor of those is considered 1>y the author of the Introihiction to be e<'rtiiiniy a ((tlcniporanoons, and per- h i:i|)s tho on<;mal, oopy ol llio inonioii flh th tnhrosian inanu- scrijtt, on tho otlior hand, lias boon [ironouncod, in an article in tho London (inartorly Uoview for (Jctobor, 1816, to bo "the clumsy and audacious forjfory of some ignorant iid« with tho (jerman league of IT) to a degree, and not with the Soanish league of 17j to a degree, by which last the early ^jianish navigators were accustomed to reckon I' rom tins pocuiiari ty in tho narrativi; it may be conjectiuod, that the rea' authoi lid not \)( iv ! ad- was a f loming, wno prolKiiily thouglit he could noi ix vance his spurious oll'spring, than l)y laying it at tho do^r of a man who had j)roiocted 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 Do Luque, the author of the " Establecimieiitos ITltramarinos do las \aceonos 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. Biiache, the geographer of the King of France, in a pa[)er read before the Academy of Sciences at Paris in that year. Captain • u' joy slates, 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 voyag* ■* for the use of that service. M. Buache, who had succet ded D'Anville as Geo- grapher Royal in 17G8, followed the geographical system of Ph. Buj.che, his relative and predecessor, and, like him, clung fondly to questionable discoveries. He had been employed to prepare instructions for the expeditoi 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 li T' ■•'■• /■ ■ :■'• < 7^ • ■' " ..■ ' G6 JUAN DE rue A. ■ ;h •\ ; r !■ :^H!i::;n t! .i'li':' i ' definitively set at rest, directed its archives to be searched, and the manuscript in the library of the Dul il il At *^'; NORTH-WEST PASSAGE. 67 1 )e searched, Infantado to } orders that were fitting ould explore to have dis- er, furnished opinion that n of the cor- beyond dis- eir oi)serva- evallos, who Iter falsity of ;overy of the 'tti. This is Madrid docu- 1 abridgment ve alluded to curious will of the voyage r's History of in Barrow's Regions, hed in 1625, has, the suc- enterprises. ck the elder, etuni Anian, age of Meta account of e, in April, led Juan de who repre- hip by Cap. cats, and to if Mexico to was to this sent again, caravel and Ithe coast of °, and there yith a broad I 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-cast and north, and also east, and south-eastward, and very much l)roader 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 on the north-u'cst 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 fruilfitl, 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 alread}, and finding the sea wide enough everywhere, and to be about thir- ty or forty leagues iri.de in the mouth of the straits, ichere he entered, ho 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 theretbre 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 S))ain, which voyage he did per- form. " Also, ho said, that when ho was come into Spain, he was welcomed there at the King's com-t ; 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. li n if^!} IM 08 NORTH-WEST PASSAGE. I : :• I m. T ) i .' limH n!i(^ ti M' i'liliVHi "Also, he said, that tmderstanding the nohlc mind of ihc- 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 Fleurieu, 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- cd facts of his voyage, the truth or falsehood of which must be conclusive is 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- I ^ M I .:.r 4^ SILE^•CE OF SPANISH WRITERS. 69 nmd of the niards, and is goods lost :o England, ry perfectly i would fur- i and a pin- s time from cd me so to fi the Span- o the Trea- Ihe Spanish s authors of IS Fleurieu, aneral truth n quoted at e, if we ad- to any sub- quent voya- i the face of btain, upon en of Eng. ire that the nongst the ery fruitful like New 3 of the un- narrator to lis voyage, ght there- the assert- hich must itself, we ith ascer- le name of 9th paral- n the posi- of suppos- inly, if this against his ve discov- jj ercd were frorr r"^ to 40 leagues wide at the mouth where he entered, and a^''^.ding to his story he sailed through them in- to the North Sea, and upon the faith of this he otlerod to per- feet 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. lo3,) which, in his Observa- tions on a North-west Passage (p. Ixi.) he seems to consider to be the pinnacle rock of I)e Fuca ; but unfortunately De Fuca has placed his " island with an exceeding high pinna- cle or spiral rock " on the north-west coast, at the entrance of the strait, instead of on the southern shore. Vancouver, on entering the straits, failed himseif to recognize any rock as corresponding to the pinnacle rock which Mr. Meares had represented, but he observes that a rock within Tatooche's Island, on the southern side of the entrance, which is united to the main land l)y a ledge of rocks, over which the sea breaks violently, was 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 who speaks of De Fuca or his discovery : that neither in any private archives in Spain, nor in the pidjlic archives 4* m i ' m ! ■ .r it) ! !• ; > ft' 70 HARTOLEME FONTE. ' 1. '■•- I (1 li! Ml ii ■ it I. , r I Ml::, ii ■■ '. 'j'i f ! I 111 ii!:! !i( 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 Fuentes, which purposes to have been performed in 1640 ; the narra- tive, however, did not make its appearance till 170S, 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 Pt 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 866 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^ -i ^ili 1 ( DE l'iSLE and IJUACIIE. 71 celebrated le author of 3xicana ob- number of reserved in ontempora- lusive, that , eh. viii.,) been able I which the equal force B Fuentes, the narra- •8, when it e Monthly e in which ufficient to absurdities ted it from ssioner, in a full ac« pon it the to 55° of ailed with orders els which object of 5t. Lucas, f his ves- id or not, and or a to 26° of .S.E., in Lched the occasion W., 410 Rio de d chan- Lazarus, ounding, ^hey had n at 6(P of N.L., and had made curious observations." Fontc ascend- ed the Rio de los Reyes in his ships to a large lake, which he called Lake IJello. Here, he says, he loft his vessels and proceeded down another river, passing eight falls, in all 3?. feet perpendiculai", 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 wiiich. Captain Shaply, told him that his owner was "a (ine 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 do los Reyes to the South Sea. One of his otlicers had in the mean time ascended another river, which he named Rio de Haro, in the lake Velasco, in 61°, whence he sailed in Indian boats as far north as 77°. Hero 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 hO° 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 William de I'lsle, 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 I'Isle pre- sented to the Academy of Sciences, in 1750, a memoir " sur les ii- ,.)! P Til I w 72 VAUGONDY S REPLY. ■ I 1 I i\..v. ii v\ 1^ Iv nouvellcs decouvertes au nord de la mer du Sud," with a map prepared by Ph. Buache, to represent these discoveries. The coinmunication Avas in other respects of great importance, as it contained tie first authentic account of" the discoveries late- ly made by Behring and Tchiricoll) in 1741. It is not stated from what source De I'lsle derived the copy of Fonte's letter, ■which 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. liuache. 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 I'lslc, 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 " Oljservations 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- I ■^ Ii GE ^ORAPUY OF CALIFORMA. 73 *:■" ith a map ics. The rtance, as 3ries late- not stated :e's letter, lentally at cpedition : 7, that he ;re agree- own con- le discov- aid down lie Pacific authority Wished in d been at J Fonte's t required the Sutil it, on the a careful I, as well chives at not the traced. r^ in his sur les 1753 ;" in Ma- ' subse- e of De seems The his ves- not ; for sland or smplete- ertained nd, near ie Alar- h :tf: ¥ ^t :1 con, in 1510, who ascended a great river at the head of the (riilfcjf California, supposed to be the Colorado. A series of exrellent charts were drawn up by Domingo del Castillo, Alarcon's pilot, a facsimile of which Mr. Creenhow (p. 01) 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 {JOth 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 a!id Peru, who must have had ready access to the archives of the Indies at Mexico, should have expressed himself in a maimer which argued a to- tal ignorance of the previous discoveries of his countrymen ; but it was very probable that a contributor to the Montiily Miscellany should stumble upon this ground, from a notion having been revived in Einope, about the middle of the 17th century, that Calitbrnia was an island. Humboldt, in his Essai Politique sur la Nouvellc Espagne, 1. iii., c. viii., 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. IJut, in his Introduction Gcographique, 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 recei\ed the name of "Pichilin- gucs," they caused great euibarrassment 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 tiie main land, has been referred by some authors ; but Mr. (Jreenhow (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 Esca- lona, who was Viceroy daring 1640-42, about the very time ii I I : 1/ * Hi 1 1 It nil )jM^ \4 74 VARIATIONS 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, 1655- 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 Haro," 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- f • 4 m ■•/« A '■'h % did not, how. Idt informs us, Spain, 1655- !alifornia as a as Carolinas." 56 for example jr to the King ion, 1666; of Herman, Moll, at the British nd in Jenner's ;t headland of a was in times itinent, and so , was found to art of the six- jenturies, such )grapher, pub- dited in 1570, ective editions :ierc, 1602, of IS, in 1625, of Vtlas of 1648, . The single lich he, being ow prince (or he despatched )iego Penne- ireat minister an island or an island or PETIVER TUE NATURALIST. 76 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. I '■ ■* M *.: • X ' m. ^ri 7fl CHAPTER V. THE CONVENTION OF TIIK ESCURIAL. ;h ': iiii M^' i The King fJcorgc's Sound Company, in 1785. — Dixon and Portlock — The Nootkaand Sea Otter. — The Captain Cook and Expirimont. — E.x- pcdition of Captain Hanna under the Portuguese Flap. — The Fehce and Iphigenia. — The Princesa and San Carlos, in 1768. — ^Martinez and Ilaro directed to occupy Nootka in 1789. — Tlie Princess Royal ar- rives at Nootka. — Coluett arrives in the Argonaut, July 2, 17B1), 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 Ulas — The Columbia and Washington allowed to depart. — Representation of the Spanish Government to the Court of London. — British Reply.— Memorial of Captain Mcares. — Message of the Bri. tish Crown to Parliament. — British Note of May 5, 171)0, to the Spa. nish Minister in London. — British Memorial of May 1 G. — 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. tcr 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. — Convemlon between Spain and Great Britain signed at the Eecurial, Oct. iJd, 179U, — Recognition of the Claims of Great Britain. 1 i ' ' I i m > I 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 Company 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- KlXn GEOROK S SOUND TOMPANV. and Portlock — xpirimrnt. — Ex- — Tlic I'Vlicc and . — IVIartincz and nccps Royal ar- ily2, 1781), with 1 his Vessel, by vessels sent as lUowcd to depart, Jourt of London, isagc of tlic Bri. 1790, to the Spa. G. — Memorial of lolic Majesty to ration and Coun. ranee, according nbly promotes a ween Spain and -Recognition of subject could nee from the , to the east- dia Company Thus the of the King J two vessels e autumn of om the South Ca[)e Horn, lent with the )n, and there China, to be lope to Eng- W'. elation uiuh^r the patrnnaffo of the (lovornor CciuMal of In- dia, early in I78t1, despatched from Caieutla, inider the Ihij; of the i"ind from liombay for the same desti- nation. An attempt, however, had been made by the Hritish n.ereliants in the preceding; year, to or other lMn*o|)ean nations, by means of licences L t \i 'I ■1 •I 78 TiiK MEHciiANT ruoriunToia. ■IP ,'] ■ill him, as niso hor carpfo, in case hn should havotlie superiority in the conllict. (Ai)j)i'n(lix to Mearcs' V()yaji;o.) To tho saino eiruct, tlio orders of Captain Moarcs to Cap- tain J)oii^Ias, of the I[)hijfenia, sooni to bo conchisive tliatthe latter had tidl control over the vessel. " Siioidd you," it is observed, " in the course of your voya^^e, meet with the ves- sels of any other nation, you will have as little communica- lion with them as possible. If they Ije of superior force, and desire to see your papers, you will show them. You will, however, be on your «^uard against surprise. Should they be either Russian, Knglish, Spanish, or any other ^nvilised na- tion, and are authorised to examine your papers, you will per- mit them, and treat them M'ith 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 olHcers 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 .1 I A I 13 * V. nnnisn colours hoisted at nootka. 79 le superiority m f tlip deception seems to have been directed rather ngainst tho Chinese than the Spaniards. Whatever may have hren the character wliich was sought to l»e given to the Felice and I|)higenia, Meares appears on landing at Nootka to have avowed hi.s British character, by hoisting liritish colours upon the house which he l)uilt on ground granted to him iiy iMafpiillfi, the chief of the neigh- l)ouring district, as well as by displaying the English ensign on the vessel which he constructed and launched at Nootka. It was his intenticjn to employ this vessel, a sloop of about forty tons, exclusively on the ct)ast of America, in exploring new trading stations, and in collecting furs to be conveyed by the other vessels to the Chinese markets. It was named tho North. west America, and was manned by a crew of seven British subjects and three natives of China. Meares, having left the Iphigeniaand North-west America to carry on the trade on the American coast, returned with a cargo of furs to Macao, in December 1768, and having there sold tho 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 *,.! ! .f -I m I , ; ' .liM^-l'l :! 80 MARTINEZ AND IIARO. S'P S^Ml;liii .>^ Hi fv ii!; llil i obey your orders, when they are for our hcnefit, 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 officers 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." I'henceforward, 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 17SS, consisting of two vessels, the Princesa and San Carlos, under the command of Esteban Jose Martinez and Gonzalo Lopez do 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 discoA^ery 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 in*o 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- m ■■i\ II 'i SEIZURE OF THE ARGONAUT. 81 t, and in this ■al, America, I the coast of time of their ship to Chi- a deviation and North - ler the same ments along ecome noto- irnals, could nment. An •thward from vessels, the of Esteban ley were in- ound, and to neighbour, returned to 'eported the Martinez ition of the e Court of to the Em. the territo. I to extend Viceroy of it the exe- despatched occupy the Perez in might be s between 1 the para, re, and by ich might of May The San tibia mer- ing at an- I I ,1 Iff chor at no great distance. Mutual civilities passed between the difibrent 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 orports belonging tothe 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 Ameri(;a arrived from a trading voyage along the southern coasts, and was im- mediately taken jjossession of i)y Martinez. A fewdays 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 ('olnett, who, upon hearing of the treatment of the Iphigenia and the iNortli-wcst 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. Iler consort the Princess Royal on her return to Xootka on the l.*3th of July, was seized in like manner by the Spanish commander. Roth these ves- sels were sent as prizes to San Bias, according to Captain Mearcs' 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. SmoIi is a brief summary of the transactions at Nootka Sound in the course of I78'J, which led to the important poli- il 1. !• .;. ■ 1 iiit 82 BPANISn REMONSTRANCE. : 1 k'W •I i!i; Miiiiiii t i ■^ til, :■■ 'illi : ' ( 1,1 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 th' 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 pul)lished in full in the appendix to Meares' V^oy- 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 l)een hitherto suffi- ciently ascertained, had been captured at Nootka Sound by an officer commanding two Sj)anish ships of war." Having alluded to the sul)stance of the communications which had passed betM'een the two Governments, and to the British I .'!1 I BRITISH DEMAND. 83 i -I Jntion of the ■ this conven- Lin in respect of America, ese transac- hastened to of a British the attempts ries long oc- inst their en- the fisheries itain at the Ij demanded preliminary rhe Spanish the Viceroy lajesty con- iing the un. nty, naviga. seas, in that with Great ts in future, th' Coium- izure of the engers in Princess cuments to rial of the an account a and the n May 13, ares' V^oy. t the state s followed Parliament to his Ma. ?, and two iprto suffi- Sound by Having ^'hirh had e British ss 1-' minister having been directed to make a fresh representation, and to claim full and adefjuate satisfaction, the message con- cluded with recommending that " such mea^^u^es 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 (ireat liritain by arms were imme- diately commenced. In the mean time a note had been ad- dressed on May 5th, to the S[)anish minister in London, to the etlect that his Majesty the King of b^ngland would take effect- ual measures to prevent his sul)jects from acting against the just and acknowledged rights of Spain, but that he could not accede to her jiretensions of absolute sovereignty, commerce, and navigation, and that he should consider it his (kity to pro- tect his subjects in the enjoynumts of the right of fishery in the Pacific Ocean. In accordance with the foregoing an. swers, the British chargc-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 indisputalile 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 uitions." The substance of these communications was emb*';'/ d in the me- morial of the Court of Spain, delivered (i;> J.i,u- l'3fh to the British ambassadcn' at Madrid. It a[)peared, liovover, from a subsequent reply from the Spanish min' .■ r, the 'Jf.dde de Florida Blanca, that S])ain maintained, ''that the c' tfMition of the vessels was made in a port, upon a eoas', o>- in a I'ly of Spanish America, the commerce or navigation of whicl' belonged exclusively to Spain by treaties with all nations, even Engkmd herself. The natiu'e of tl!e??e exclusive claims of Spain had i)een already notitied to all the courts of l']urope, in a declaration made by his Catholic Majesty on Jere 4th, where the \\ordsare made use of, " in the name of ihe 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 nf the Indies, has alwa> s used these words: tfiat is to say, to the continent, islands and seas, which belong to his Majesty, so far as discoveries have been fl! h 5 . IHi 1 ■*3i 84 SrANISII MEMORIAL. i' ii), i,:r iUI mado, and sccurod to him l»y treaties and immemorial posses- sion, and uniformly ae(niiesced in, notwithstanding some in- fringements hy indi\ i(hials, wlio have been punished upon knowledge of their olienccs. 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 hipanish Memorial of the 13(h June. The chief reliance seemed to have been placed upon the 8th article of the Treaty of Utrecht, as concluded between (rreat iJritain 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 j)ennission 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 docume.its 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 Spai!i to her dominions, which she had extended to the limits of the Russian establishments within Prince WiU liam's Sound. It was still fiu-thor alleged, that the Viceroys of Peru and New Spain had oi' 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 Calitbrnia that the commanding otl^icerofa Spanish ship had detained the English vessels in Nootka Sound, as having arrivivl there, not for the purposes of trade, but with the object of " founding a settlement and forti- fying it." Prom these negotiations it would appear, that Spain claimed for herself un exclusive title to the entire north-western coast n DECLARATIONS OF THE TWO POWERS. 65 orial possos- ng some in- iiislied u[)on i iij) no pre- ;annot prove ession upon \y stated in ief reliance {"the Treaty nd Spain in f navjoration remain in arles II. of jlven to any the domin- xceptlng as 3ver, Great ds in re-es- n the West been in the territories, nerica was ;learly laid and formal 3ign of the ions since ated acts iMved the xtended to ince Wil- Viceroys e western :ent, to be owing in- isual tours nmanding .'ossels in U'poses of and forti- II claimed crn coast 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 (tor almost all the nations of Europe had been i)arties to the Treaty of Utrecht) to make establishments within the limits of Span- ish America. (Jreat Britain, on the other hand, maintained her right " to a free and undisturbed navigation, commerce, and lishery, and to the j)osse?sion of any establishment which she might tbrm with the consent of the natives of the country, where such country was not previously occuj)ied by any of the European nations." These may })e considered to have been the two questions at issue between (ireat IJritain and Spain, which were set at rest by the sul)sequent convention. That such was the object of the convention, is evident from the tenor of two docutnents exchanged between the two courts on the 24th of July, 1700, the first of which contained a declaration, on the part of his Catholic ^lajesty, 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 w hich 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 wish the performance of the engagements contained therein, as a full and entire satisfaction tor the injury of which his Majesty complained; v/lth the reservation that neitl < r the declaration nor its acceptance "shall preju- dice in ctny respect the right which his Majesty might claim to any esta})lishment which his subjects might have formed, or should be desirous of forming in future, in the said Bay of Nootka." Mr. (ireenhow's mode of stating the substance of these papers (p. 'JOG) 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 wlmiltcd 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 u i hi • ! 1 ij 8d CO:yVENTI0X OF TUE ESCURIAL. 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 ITbl, 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 two crowns would have secured at an earlier period. The National Assembly, to which body Louis XVI. was obliged, under the altered state of political cir^ jmstances in France, to submit the letter of the King of Sp.iin, was ratho.r 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 a'-maments 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. \\\.) and with M. de Montmorenci, the French Secretary for Foreign Affairs, in furthering the peaceable adjustment of the questions in dis- pute. Cf.'ivcnlion hetwren His Britannic MdjesUj and the King of Spain, signed at the EscuriaJ tlie '■l^Ah of October, 1790. (Annual HegLs\pr, i 7*J0, p. 303. Martens, Recu^il de Trait6s,t. iv., p. 4!)3.) "Their Tiritamuc and Catliolic Majesties, being desirous of terminating, by a speedy and solid agreement, the diller- ences which have lately arisen between the two crowns, have judged that the best way of attaining this salutary olyect would be that of an amicable arrangement, which, setting aside all rotrospcitive di.scusision of the rights and pretensions of the two parties, bhould tix their respective situation fur the I I le rights of (1 asiistance rttl, known ■it she would jf exclusive Bstern Ame- md what is xty.first de- co was not Tients of the ii-iod. The vas obliged, in France, p.r disposed resent itself nations for id though it ould be in- nts of other ssistance to ittee of the he relations f possible ; ent of Mr. with M. de Affairs^ in ions in dis* e King of her, 1790. Iccu3il de ^g desirous the dirt'er- o crowns, tary olyect ch, setting retensions ion 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 C(tnstituted for their plenij)otentiaries ; to wit, on the part of his IJritannic 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 Crand Cross oftlie 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 Ibllowing articles : — "Art. I. It is agreed that the buildings and /rrtc/5 of land situated on the north-west coast of the continent of >»orth 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 otFicer, 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 resprcti\e subjects shall, since the same period, have been foicii)ly dispossessed of their lands, buildings, vessels, meichandise, or other property whatever, on the said continent, or on the seas or islands ad- jacent, they shall be re-eslablishcd in the possessian thereof, or a just compensation shall be made to them iorthe losses which they shall liave sustained. *' Art. III. And in order to strengthen the bonds offrierd- ship, and to preserve in future a perfect liarnKjny and g(K)d understanding b(>tween 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 tisheiies in the Pacific Ocean, or in the S)ulh 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 1 1| ''I ■\ u 88 CONVKXTION OF THE ESCURIAL. .t! Mi ;!■! '^Mi| (■! :liiii ■I country, or of maldnft srtllemenis there ; the whole subject, ncvertlu;U!.s.s, to the restrictions and provisions specilied in the three l'oih)\viiifr artich's. "AnT. IV. His Britannic Majesty engages to take the most ell'cctual measures to prevent the navigation and lisiiery of his subjects in the Pacific Ocean, or in the South Seas, from i)eing made a pretext for illicit trade with the Spanish scUJcmcnts ; and with this view, it is moreover expressly stip- ulated, that British subjects shall not navigate, or carry on their lishery in the said seas, within the space of ten sea leagues from any part of the coasts ulremly occupied by 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 i)y Spain, wherever the subjects of either of the two powers .shall have made scllJemenls since the month of April, 1789, or shall hcreafler 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 setllement 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 sulyects 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 oflicers of either party, without permitting themselves previously to commit any vio- lence or act of force, '^hall 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 signatiu'c, or soonei', if it can ])e done. " In witness wher«M)f, wt- the undersigned Plenipotentiaries of their Britannic and Catholic Majesties, have, in their :* ' •!••'■ ARTICLI .^ OF THE CONVENTION. 89 c subject, pecilied iu > take the ,nd lishcry •uth Seas, le Spanish essly stip. r carry on jf ten sea ' hy Spain. ces which tue of the ern coasta ted to the hy Spain, sluiJl have I, or shall have free isturljance the east- he islands er, hy the ire sitiiat- nd of the ain : pro- le liberty the pur- and other • on of the ler party, any vio- let rpport spectivo amicable ratified computed 1)0 done, entiaries in their names, and in virtue of our respective full powers, si«j;ned the present convention, and set thereto the seals ofotir arms. " Done at the l*alace of St, Latuenci', the twenty-eightii of October, one thousand seven hundred and ninety. " Alleyne Fitz-IIeuheut. (L. S.) " El Conde de Flokida Blanca." (L. S.) On examining this convention, it will be seen that the first article confirmed the positive engagement which his Catludic Majesty had contracted by his declaration of the *>! 1th 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 coilnter-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 scltlvmenls in places not alrrathj occuinid^ 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 witli 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 difTerences which might arise from in- 1 u w m § 90 MH. OREENHOW 8 VIEWS. ^ 111 ■1 '7 i '1 11 "i: '1 I ■ J f ■ ]'■■ *)' ■; 1 1* '^i Ih '() It 1 ,;' \f \ } • ;: • i i -i. "[ 1 i ^w • i ] fringomcnts of the convention ; and, by the eighth, the time of ratllication was settled. It thus ap|)ears that, by the third article, t'io right insisted upon by the British charge-d'afFaires at iMadrid. m the Memo- rial of the 16th of May, was fully acknowledged ; namely, "the indis[)utable right to the enjoyment of a free and unin- terrupted navigation, commerce, and lishery, 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 Ic 28 Octobre, au palais de I'Escurial, une convention par laquelle la question litigieuse fut entierement decidoe en favour 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 VVestern Indies, founded upon the bull of Alexander VI., were restrained within definite limits ; and occupation, or actual possession, was acknowledged to be henceforw .rd the only test between the two crowns, in respect to each other, of territorial title on the west coast of North America. Mr. Greejihow 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 VANCOUVER S MIS3I0X. 01 ighth, the time rights of either to the sovereignty of any portion of America, except so far as it may imply an ai>rogati<»ii, 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 hy either party. The general law of nations would reguhite this ques- tion, if the convention determined nothing : and, by that general law, " when a nation takes jjossession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sorcreiirnfi/ of it at the same time with the domnin." The discussion of 'his question, however, as being one of law, not of fact, ' be more properly deferred. One object of Vanconver's mission, as already observed, was to receive from the Spanish officers such latuls or build- ings as were to be restored to the subjects of his IJritaimic Majesty, in conformity to the first article of the convention, and instructions were forwarded to him, after his departure, through Lieutenant llergest, in the IJirdalus, to that etiect. 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. " In 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 Sefior Quadra, the Spanish commandant, and despatched Lieutenant Mudge, by way of China, to England, for niore explicit instructions. Lieutenant Broughton was subsequen'.ly 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, was ordered to proceed to Nootka, as captain of »,. i\ 11 \\\ n I (t 1 ' I Ui IMAGE EVALUATION TEST TARGET (MT-S) ^ 1.0 I I.I 11.25 M 12.5 m^ .. .,. Ill 2.2 I 2.0 U 11.6 V .^ .^.•»' v> .^-^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 l\ qv Li7 >^ ^<^ ''%^ lA i9 \ i. ^ ^^ 02 BELSHAM I HIST0S7 OF ENGLAND. w I < 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 l>een 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 Abregce des Traites de Paix, t. i., ch. xxiv., refers, when he writes, — " L'execution de la Convention du 28 Octobre 1790, oprouva, du reste, des difficultes qui la retarderent jusqu'en 1795. Elles furent terminees le 23 Mars de cette annee, sur les lieux memes, par le brigadier Espag- nol Alava, et le lieutenant Anglais Poara, (Pierce?) qui {>changcrent des declarations dans le goife 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 Segur ; — 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 Espana, que el Exmo Senor Virey Condo de Kevillagigedo dio a su sucesor el Exino Senor Marques de Branciforte, en el ano de 1704," that or- ders had been sent to the commandant at Nootka to abandon the place, agreeably to a royal dictamrn. 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, bo 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. Duflot de Mofras, in his recent work, intitled, " Explo- ration du Territoire de TOrcgon," tom. ii., p. 145, further states, that Lieutenant Pierce passed through Mexico. " Par suite de quclques fausses interprt'tations du trait'- de 28 Oct. 1790, les Espagnols ne remirent point immwliatement 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 ex pros de Londres par le Mexique, pour hater I'exccution du traite de I'Escurial." \ It .1:11 ;i 5* Jj: ]{' ' 4 ;:•;'' 1' ml. mi iii i ''i'ti 04 CHAPTER VI. THE OREGON OR COLUMBIA RIVER. The Oregon, or Grent River of the West, discovered by D. Bruno Hcceta, in 1775. Ensenada dc llcccta. — Rio de San Roque. — Mcares' Voyage in the Felice, in I7b8. — Deception Bay. — Vancouver's Mission in 1791. — Vancouver vindicated against Mr. Grcenhow 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. — Tho Chatham crosses the Bar, and finds the Schooner Jenny, from Bristol, inside. — The Die- covery driven out to Sea. — Lieutenant Broughton ascends the River with his Boats, 110 miles from its Mouth. — Point Vancouver. — The Cascades — Tiie Dalles. — The Chutes or Falls of the Columbia. — Mi". Greenhow's Criticism of Lieutenant Broughton's Nomenclature. — Lord Stoweil's Definition of the Mouth of a River. — Extent of Gray's Re- searches. — Tiie 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 177.5, 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- lishcd at Mexico soon after his return, the inlet, which ho named Enscnada dc 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 46° 17' N. L., he proceeds to say, that having placed his ship nearly midway between the two capes wi.ich formed the extremities of the bay, ho found the currents and eddies MEARES VOYAGE. 05 )| too strong for his vessel to contend with in safety. "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 liule 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 so 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, still its existence was believed upon the evidence which Heceta's report furnished, and as subse- quent examination has confirmed its existence, the Spaniards seem warranted 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 17^8. 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. " Wo can now with safety assert," ho writes, " that no such river as that of Saint Roc exists, as laid down in the Spanish charts." Meares had been led from those 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 was 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 ns that of St. Roque, as laid down in the Spanish charts, for the context of Meares' narrative explains the meaning of the i- ■ ■ !■' " r "■ If il' 1 00 BRITISU SETTLE3IENT IN 1827. b (•) "1 '4 ',)■■ *in M'ord "such." IVIcares states lioforchand, tliat they were in expectation that the distant hind beyond the promontory would prove to be " tlic Cape St. Hofjue of the Spaniards, near M'hich they v'C7'e said to have J\ mud a ^ood porl,^^ The river, then, of St. Koque, such as it was laid down in Spanish charts, was a river " near which was a good port," and the disap- pointment which Mearcs handed down to posterity by the name which he gave to the ])romontory, was that of not ob- fainiiiir a place of shvltrr for his vessel. Mcares, 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 F'ica, which he supposed might be one of the passages into Huds^on'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. 1G6.) Such a harbour indeed Deception Bay most assuredly does not supply, and though Baker's Bay within the bar of the river fttlbrds on the north side a good and secure anchorage, yet, as Lieut. Broughton su^^sequently 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 inditlerent roadstead." Mr. Greenhow, (p. 177,) in his observations on Mcares* 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 Pacific 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 thai in 1788, MEARES LOG-BOOK. 07 that is, four ye.irs before Gray entered the mouth of the Co. hnnhia ritrr, Mr. Meares, a lieutenant of the Royal Mavy, who had been sent by the East India C'ompany on a trading expedition to the northwest coast of America, had already minutely explored the coast from the 19th to the 45lh degree of north latitude ; had taken formal possession of the Straits of De Fuca in the name of his sovereign ; had purchased land, trafiicked and formed treaties with the natives ; and had actually entered th( bay of the Columbia^ to the north head- land of which he gave the name of Capo 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 {info which the log expressly stales that Meares en- tend,) is nunutely 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. 4G° 10' ; long. 2.'i5" 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 shouhl 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 lirst 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- a I i i'. rt ' '1 1 t I I •! 98 CAPH ORFORD. I ■I ,-i» it, ■il :^ii: I 'pll tent, and situation of any settlement which had been made within the limits of CO" 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 G, 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 black 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 (Vol. i., p. 205, April 25, 1792) writes : " Some of us were of opin- ion that this was the Cape Blanco of Martin 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. OREEXnOW S REMARKS. 09 he considored to be Cape Blanco. lie here ranged along the coast, at the distance of about a league, in iiope of discover, inff the asserted river of D'Ajfiiilar. "About three in the afternoon, we pas.sed within a league of the cape abovc^ 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 clifls, ^some of which are white, a considerable height from the level of the sea." It appeared to Vancouver to correspond in se\eral of its features with Captain C'ook's description of Cape (Jregory, though its latitude, which he determined to be 43° 2U', 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 ichite sandy beach commenced, where the rocky cliffs composing it termi- nate." Mr. Greenhow 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 Pacitic thereabouts, in 1003 : 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. serrations been made in reference to Cape Gregory, the high cliffs of which are described by Vancouver as while, they would have been intelligible ; but, directed as ilv.-.y are by Mr. Greenhow against a headland which Vancouver expressly de- scribes as a " wedge-like, low, perpendicular clitF, composed of black craggy rock, with breakers upon sunken rocks about four miles distant, in soundings of fbrty-tive 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 u 1- 1 :|: ■ J* 100 MR. BOBERT GRAV r, I ! ' I 1' ' il • I. them in sight of a conspicuous point of hind, composed of a cluster of hummocks, moderately high, and projecting into the sea from the low land above mentioned. The hunnnocks arc barren, and steep near the sea, but their to|)s thinly covered with wood. On the south side of this promontory was the ap- pearance of an inlrl, or small river, the land behind not indi- eating 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 ho calls Cape Disappointment, and the open- ing south of it Deception Bay. This cape was found to be in latitude of 4G° 19', longitude 236° G' cast. The sea had now changed from its natural to river -cohin-cd 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 Heceta in observing the river-coloured ivater, and so determin- ing the inlet not to be a strait of the sea ; but he rightly do- cided that the openi.ig 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 ofi' 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 Kendrick, visited ^ CROSSES THE BAR OF THE COLVMBtA. 101 \ootka in 17r?8. Ifiivitij; ijrivcn N'lincotivcr sonu» information respcctinn; l)e I'nca's Straits, ho statrd that lie hant there was the appearance of an inlet or small river, " which did not however seem accessible for vessels of our burthen," as breakers extended ri«j[ht across it. Mr. (iroenliow misre- presents Vanc«)uver, when ho states that Meares' opinion was subscribe*! witliout qualification by V^ancouver, for Vancouver carefully limits his opinion of the river to its beinpf inacces- sible to vessels of e(jual burthen with his own slooj) of war, the Discovery. (rray, after entering the Columbia, appears to have returned to Nootka, and to have given to JSefior (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 fulfdment of the first article of the Nootka Convention, determined to re-examino the coast of New Albion. With this object he sailed southward in the Discovery, accompanied by the Chatham and the Dicdalus. The Dicdalus having been left to explore (Jray'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 Cohnnbia 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 band, the Starling, r. \ ! 1 104 DANGERS OF THE NAVIGATION. \) II- ini. 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 ilu vessels of the Hudson's Bay Company have been obliged to lie-to oft' 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 fi'om 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 been 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, was 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 fifleen miles from Cape Disap- pointment, was, according to the sketch, thirty-six miles dis- ■% POINT VANCOUVER. 105 ) Ki |'|- Jl 114 ACTS ACCESSORIAL TO OCCUPATION. Iff ■ Si' '1';l! upon the title originally acquired by ocrupannjj 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 milliiis,) and the slate 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. 116 CHAPTER VIII. ON TITLE BY DISCOVERY. I ". I Discovery not recognised by the Roman law. — Wolff. — The Discovery must be notified.— illustration of the Principle in reference to Nootka Sound- — Vatlcl. — Discovery must he by virtue of a Commission from the Sovereign — Must not be a transient Act — Martens' Prdcis du Droit des Gens — Kluber. — Bynkcrnhock. — Mr Wheaton. — Practice of Na- tions — Queen Elizabeth. — Ncgutiatiuns between Great Britain and ths United States, m IH^i.- — Xontka Sound Controversy ^^ — Discussions be- tween the United States and Rusf)ia, in 1822. — Dcclarntion of British Commissioners, in 1826. — Mr. Gallatin's View. — Conditions attached to Discovery. — No second Discovery. — Wolff. — Lord Stowell. — Fr^ grcssive Discovery. — Dormant Discoveries inoperative for Title. Amoxg 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 terra dans des limites, ou la destine u quelque usage par un acte non passager, ou 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 \\\ .. ! ■■>l •I I I i (■ ^ 1- jl!|v# . I no JVOOTKA SOUND. 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 bo presumed from the announcement of the discovery, which the comity of nations will res|)ect, — if the tirst comer has not taken actual possession, but has passed on, the pre< sumption will bo that he never intended to appropriate tho 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. (jreenhow (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 sufficiently made known its will in this respect^ it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished ivith 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 suflli- 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 1 J_ , : ■ . ,■ 1' ft • ■ 1 - '^* S • X ■ * yi^iv, 1^^^ TT?\XSIENT ViaiTS. 117 t, that the as aban. propriate liscoveiy, st comer the pre. »riate tho concealed s a good ication of in refer- nmeni of Its of this ?e or the ^ed itself claim of J Nootka Captain arge :— bave not lings be. When thout an ?r it has nnot be oing on >m their a desert the na- vided it DUst be he will >t suffi. by the wn for. ry, has •wever, r than iulls of the 16tli century enlarged it to an inconvenient extent, to the exclusive benelit of two liivourod nrtlions. Thus Vattcl : — "The law of nations will, therefore, not ncknowlrd^e tho pnij rty and sovorni<»nty of a nation over any uninhabited countries except those of which it has really takenactual possession, in which it has fornicd settlements, or of which it makes actual use. In etl'ect, 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 enj|)ty ceremony as to the regulation of tho Po|)es, 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 dcs Gens, ^ 37 : — Suppose (pie I'occupation soit possible, il faut encore qu'cllo ait eu lieu ettectivement, — (pic le fait de la prise de possession ail concouru avcc la volenti' manifesto (le s'en ai)pro|)rier Tobjet. La simple (k'claration de volonte d'une nation ne suUit pas non plus qu'unc donation papalc, ou unc convention entre deux nations pour imposcr ii d'autrcs lo devoir do s'abstenir do I'usagc ou de I'occupation do I'objct en question. liC simple fait d'avoir Ca.6 le premier a decouvrir ou a visiter unc ile, &C., abandonnee ensuite, semble insuflisant, memo do I'aveu dcs nations, tant qu'on n'a point laisst' de traces permancntcs de possession et de volonte, et ce n'est pas sans raison qu'on a souvent dispute entre Ics nations, commc entre Ics philosoj)hcs, si des croix, des poteaux, dcs inscriptions, tS>cc., suflisent pour acquerir ou pour conserver la proprietc exclusive d'un pays qu'on ne cultive pas." Klubcr, to the same effect, writes thus: (§> 126) — "Pour acquerir une chose par le nioycn de I'occupation, il ne sufiit point d'en avoir sculemcnt I'intention, ou do s'attribuer unc possession purement mcntalc ; la declaration mt'ine do vouloir occupcr, faito anterieurement a I'occupation efl'ectuee par un autre, ne suffirait pas. II faut qu'on ait n'ellement occupc le premier, 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'occu|)ation d'une partio inhabitee et sans maitre du globe de la terrc, ne peut done s'etendre plus loin qu'on ne peut tenir pour constant qu'il y ait cu rffeclivemcnt prise de possession^ dans I intention de s^altrihiier la propriete. Comme preuves d'une pareille prise de possession, ainsi que C* U ! ■ »• ■ V ;?• ,-N ■ i r 3 •\n\ ii :1' 118 THEORY OF JURISTS. ut! de la continuation do la possession en propriete, peuvent servir tous Ics signcs exterieurs qui marquent I'occupation et la possession continue." On this passage there is the following note :— " Le droit do propriute d'etat pcut, d'apres le droit dcs gens, continuer d'exister, sans que I'etat continue la possession corporelle. II sutfit qu'il existe un signe qui dit, que la chose n'est ni res indUus, ni drlaissc'c. En pareil cas personne ne saurait s'approprier la chose, sans ravir de fait, a celui qui I'a possc'dce jusqu'alors en propriety, ce qu'il y a opc're de son influence d'unc manicre legitime : enlcver ceci ce serait blesser le droit du proprietaire." It would be ditlicult to determine theoretically what would constitute a sufficient sign that the territory is not vacant, or abandoned. Bynkershock, who was opposed to the con- tinuance of proprietary right from discovery, unless corporeal possession was maintained, subsequently qualified his view. " rra3ter animum possessionem desidero, sed qualemcunque, quae probet, me nee corporo dcsiissc possidere." (De Dominio Maris, ch. i.,DeOrigine Dominii.) Mr. Whcaton, in his work on International Law, (vol. i.,ch. iv., §5,) writes thus: — "The claim of European nations to the possessions held by thorn 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 achnit the excUisive pretensions of the Spaniards. When Mcndoza, the Spanish ambassador, remonstrated against the expedition of Drake, she replied, " that she did not under- stand why cither her subjects, or those of any other European prince, should be debarred from tratiic in the Indies : that, as she did not acknowledge the Spaniards to have any title by donation of the Bisliop 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 1- peuvent upation et " Le droit continuer corporelle, 'est ni res le saiirait 1 possc'doe influence er le droit hat would t vacant, I the con- corporeal his view, mcunque, Dominio vol. i.,ch. ations to levered by ios which >f Africa conquest the same »e theory uage of e north- ipute be- ilizabeth •aniards. I against t under- luopcan that, as title by ht they Jal pos- d there 9, were I'UAt.TK'K or XATIOXS. 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 efiicient 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. 812.) 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 docs 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 vi-hich Spain, in speaking of the Indies, has always used these words, — that is to Scay, to the continent, islands, and seas which belong to his Majesty, so far as discoveries have been made and secured to him by 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- ^1 f t ! ' i I . 5- '. r I 11 .1^ if^'^^ 120 BRITISH DOCTRINE. i^J i.i il merce, and navigation, had already been rejected by the British Government, and they had insisted that EngHsh sub- jects, 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 II., 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, -,^y 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 three 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 tliis 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 name 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 i;v /v^-. CONDITIONS ATTACHED TO DISCOVERT. 121 by the glish sub. iisputable ivigation, uch esta- te natives European LUce from ly Com- [ircations, vereignty 3 II., and e by dis- : was au- [s of pos- Utrecht. )ok place n respect '' resulted ril, lb24, shington, in Secre- ese three d imme> scovery ; at which of more I Papers, , Messrs. ! held at trine : — ititutes a omewhat the most attended le name ttlement, 7, or ro- utes the 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 Stoweli (in the Kama, 3 Rob. p. 115) lays it down, that " even in newly discovered countries, tchcre a title is meant to be established for the first time, some act of pos- session is usually done and proclaimed as a notijication 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 abandonnue, si simplement son maitre ne veut pas qu'elle soit plus long temps sienne, c'est a dire, que I'acte de sa volonto ne contienne ricn de plus que ceci, que la chose ne doit plus ctre u lui. D'oii il paroit, quo celui qui abandonne une chose cesse d'en etre le maitre, et que par consequent une chose abandonncc dcvient unc chose qui n'cst 1* »ii ' ] :>1 122 PROGRESSIVE DISCOVERV. a personne ; mais qu'aussi long temps que le maltre n'a pas I'intention d'abandonner sa chose, il en rcste 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 aisement contre 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 discover]/ 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 w hich 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 arc 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 frum question, if the dormant ashes of alleged discoveries might at any time bo raked up. ';! i' ' ! Sd': hf '■'■' ul: 123 '■5 CHAPTER IX. TITLE BY SETTLEMENT. Title by Settlement an imperfect Title. — Presumption of Law in its Fa- vour. — Made perfect by undisturbed Possession. — Wlieaton. — Title by Usucaplion or Prescription. — Vattel. — Acquiescence a Bar to conflict- ingf Title of Discovery, — Hudson's Hay Settlements. — Treaty of Utrecbt. — Tlie V^icinitas of the Roman Law. — Mid-channel of Rivers. — Conti. guify, as between conterminous States, a reciprocal Title. — Negotia- tions between Spain and the United States of America. — Vattel — I'cr- ritorial Limits extended by the Necessity of the Case --Right of Mari- time Jurisdiction, bow far acces.sorial 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- pnrfcct 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 sottlcment, however, differs from title by discovery, or title by occupation, in this respect, — that no second discovery, no sc- 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 conlirmed 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 po.s.sidet, si modo actor non potuerit suam esse probare, rcmanet in suo loco possessio ; propter quam causam, cum obscura sint utriusque jura contra petitorem judi- cari solct." (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 I"-' .. r .>l: m u ■■:! Ii < , f ; f :i ' 1 , r , i i i !•' ! 1 - ! } i i i i I 1 121 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., § 6) 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 ccssc d'en etre le maltre, et par consequent une chose abandonnoe 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 •prescription. Wolff 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 exclu- sion of all pretensions to a right — an exclusion four.lo'^ on the length of time during which that right has been ijoglected ; or, according toWoHF's definition, it is the loss of an inherent right by virtue of a presumed consent. Vattel, writing in French, and observing that the word usucaption was but little used in that language, made use of the word prescription when- TITLK BY rRESCRIPTIOX. 125 t\ ever there were no particular reasons for employing the other. The same remark may be applied in reference to our own Ian. guaore, and thus this title is generally spoken of as title by ])rescription. 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 prcsunip. tion of relinquishment will be established 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 hondjide 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 set- 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 discoverv, 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. 1? V- I;- '4 a. mr-i'. J ■ 120 MI1)-C1IA.N,NEL ISLANDS. I'' • «:: ■ u :!!•: li i|; .1! .\. ^!! ill ing by virtue of adjoining settlements, seems to be governed by no fixed rule, but must depend on the circumstances of the case. Vattcl observes (I. ii., § 95,) " If, at the same time, two or more nations discover and take possession of an island, or ant/ other dcserl land vilhoitt 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 vkinilas 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 fiuminis te- net, communis est corum, qui ah utraque parte fluminis prope ripam praedia possident, pro modo latitudinis cujusque fundi, quae latitudo j)rope ripam sit : quod si alteri parti proximior est, corum est tantum, qui ab ea parte prope ripam praedia possident." ([nst. ii., tit. i., § 22.) So, in the case where a river abandons its former channel, the ancient bed belongs to those " qui prope ripam pra3dia 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 alvcus occupaverit, licet ad priorem alveum reversum fuerit flumen ; non tamen is, cujus is agcr fuerat, stricta ratione quicquam in co alveo habere potest : quia ct ille ager, qui fuerat, desiit esse, amissa, propria forma : ct quia vicinum praj- dium nullum habet, non potest ratione vicinitatis \}\\dim. 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 the title is matter to bo established on the part of those claim- 1.n.ii;;: ' I 30 governed fnstances of t the same )ssion of an they ought e partition ; t of empire tied." The , in the case r of the ad- e an island itle to it in in fliimine, diiminis te- tninis prope sque fundi, I proximior am praedia se where a belongs to the Digest I river has re property 3d its new ctly speak- nuch as he rum novus mm fuerit ta ratione ager, qui mum pra3. im partem h are pos- is, that ry ; since unis juris, prescribed tion," ob- , p. 339,) ights, and ose claim- COXTIOUITV A RECIPROCAL TITLK. 127 ro to in«r under it, in the same manner as all other demanr' 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 di jcovery, and takes possession of any jjortion of that con- tinent (sc, of America,) and another afterwards docs the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, (sc, actual jmssession of the soa-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 o{ vie i nil as \vou\d 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 ncifjhborinjj 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 the sea, except so far as she has need of it for some lawful end. •'4. j : ^ f.: ■ j; I . .1 M. '1,1' 128 BIGHT OP PRE-EMPTION. and on the other, it would he a vain and ridiculous pretension to claim a right which she were wholly unahle 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 civili3ed nations in both hemispheres, namely, a right of pre-emft'on 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 ivdi enjoyment of the exist- ing territorial rights of the nation v nich 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 accodal, qui nunc deforniat agcllum. ,ti 1 ■-;' .-,• • .. : 1 t t ■ 1 , ■ ! t 1 1 -P v . .1: . 1 V-^'^l ! ' ^L 1 Ml_. -^ii 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. o assert." At 129 \ < CHAPTEH X. ON DERIVATIVK TITLK. Title by Conquest. — Title hy Convention. — Vuttel — Martens.— Wlira- ton. — The Practice of Nations. — United States. — (Jreat Ilritain. — Kent's Commentaries. — Mixed Conventions. — The Fisheries of New- foundland. — Treaty of Paris. — Distinction between Riirlits and Liber, ties. — Permanent Servitude. — Nefjoiiations in 1818.- Mr. Adams' Ar- pument." — 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. Valtel, 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, § 58, 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 transitoircs ; les traites d'amitie, do commerce, de navigation, les alliances egales et inegales, ont celle des traites proprement dits {fcpdera.) " Les conventions transitoircs sent perpetuelles par la na- ture de la chose." (§ 1.) Mr. Wheaton, part iii., c. II, follows in the same line : — " General compacts between nations may be divided into what are called transitory conventions, and treaties properly \h } i 130 DOCTRINJi: or THE LMTKD STATES. i i Ir II :l! ii, II ! ! iM^i tin 1 ,, I "I tM so called. The first are perpetual in their nature, so that being carried into ed'ect, they subsist independent of any change in the sovereignty and form of government of the contracting parties ; and although their o|)eration may in some cases be suspended during war, tlu'v revive on the rtlurn of peace without any express stipulatiun. Such are treaties of cession, boundary, or e.\chang«; of territory, or those which create a permanent servitude in favor of one nation v.ithin the territory of another." If wo look to the practice of nations, wc find that the tri- bunals of the United States, equally with those of (ircat IJri- tain, maintain this doctrine. Tluis in the case of The .Society for the Propagation of the Gospel in Foreign Parts v. Town of Ncwhavcn, in VVheaton's Reports of Cases adjudged in the Supreme Court of the United States, Feb. 182M, vol. viii., p. 494, IMr. Justice Washington, in delivering judgment for the plaintiffs, said, " But wo arc 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 suhject, we arc 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, arc meant to provide for the event of an intervening war, it v/ould 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 wc should have had again to struggle for both upon origin.il 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 perpeiuity, 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 hists ; 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 ?" 1 •i;-. ^..! rKRMANENT PH0VISIO8. 131 uro, so that [lent of any ment of tin; ion may in )n the ntiirn I are treaties those which ation witiiiri tliat the tri- f Great Hri- Thc Society rts V. Town adjudged in 2H, vol. viii., idgmcnt for to admit the xtingiiished, unless they ^wal on the of doctrine ons, deahng arc satisfied rue. There cct and im- lere treaties aland other to provide gainst every guished by the treaty lodged our had again principles, ould be so for pcrma- ing to aim well as of are at most waived by made, they I In the case of Sutton v. Sutton, 1 Hussrll and .\l\liu% j). 663, which was decided by Sir J. liCach, m the Rolls Court in London, i'\ 18^10, a question was raised whether by the ninth articK of the treaty of 1704, between Great Britain and the I'nitcd States, American eiti/ens who held lands in Great Britain on Oct. ~(), 171)5, and their heirs and assigns, are at all times to be considered, as far as regards those lantls, not as aliens, but as native subjects of Great IJrilain. 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 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the Act. • That the Avord ' permanent' was used, not as synonymous with ' per- petual or everlasting,' but in opposition to a period of time expressly limited." On the other hand, the counsel in sup- port of the title maintained that "the treaty contained articles of two dilierent 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 otlier stipulations which were to remain in force in all time to conie, 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 V The Master of tlie Rolls, in his judgment, said, " The pri- vileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty, that the operation of the treaty should be permaiient, and not depend upon the coniinuance 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 T 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- h !•' 132 OF CERTAIN TREATIES. ■' ,*•■ I t. 51 ;■■ 11 i : ;i'!i i Ml;: li;!!! > ( Ir ) ; qucnt 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 d'rectly repugnant and opposed to the 24th sec- tion, but is to be understood as referring to such provisions of I he Act only as would in their nature depend upon a state o 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 Jier 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 i I ■I -t ■ , MIXED CONVENTIONS. 133 jocms to be (his^ — that where a convention in its terms contemplates a permanent arrangement of territorial or other national right, the continuance of which would not bo 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 arc valid, they have in their own nature a perpetual and irrevocable effect. To use the words of Vattcl, "As soon as a right is transferred bv lawful convention, it no longer belongs to the state that has ceded it : the affair is concluded 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 bv their terms arc 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 cntre Ics conventions transitoircs et les traitrs serait encore pkis importante, si nombre des traites, et nommement les traites de paix, n'etaient pas composes d'articles de I'un et de ''autre genre, [mixtes,] ce qui met dcla ditficultc dans I'appli. cation des principes cnoncos." 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 bo free, sovereign, and independent states. ■ t m ii 134 KECOGNITIOA'S OF HVDErENDEXCU, i . .: 1 ■■ 1 i 1 < ■ f ■ ■ ,' -i r ' '■, IV'. If s 1 i i . |t* 4 ' - ■ u in 1 i iit< ' '•i ■!! > 1 j ! ! 1 H ill !■•■ ill I lit • 'I This article then contained the recognition of a right once and for all ; and as the main and principal object of the treaty was the recopjnition 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 obviously be raised in case of a war, — whether the words of the article created what Martens designates " une servitude do droit public," and what Mr. Wheaton speaks of as " a permanent servitude in favor of one nation within the territory 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 re?ations between tlie two states, so that the obligation would cease with the breaking out of war. In the negotiations v.bich 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 onderstood as grants from his Majesty. They were taken and cnpressed 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 aa a grant from one sovereign state to another. Had it been so under- I \P^- — I of a right oner al object of the ce of the United riongst transitory 3cted as soon as »sly be raised in article created froit public," and lent servitude it; her," which from during the war, or whether they 2h would be sub- f?etween tlie two th the breakinr' 18 between the apers, 1819-20,] , contended that •which, by the d nations, is or it war between d imply the in- nd independent , by the act of e very words of idependence of stood as gran(s pressed as ex- 1 only first for- Britain, ts and liberties were in no re- to the United ghts and liber- )untrics, which enjoyed under en them, con- the fisheries, k'idence that it id as a grant teen so under- i 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 1783, 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 tho 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 r. ^ ! ■ n .j \\ il f I ! M P i;t ii 1 mi M ! I n m; i' r t i , i 1 j;^ P 13G IRREVOCABLE RECOGNITIOAS. consider any one state at liberty to assign to a treaty made with her, such a pccuUarity 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." " It is by no means unusual for trcalies containing recogni' iions and acTxnowhdgmcnls of title, in the nature of perpetual obligation, to contain, likewise, grants of ptrivileges 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 independence, 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 coi sequences 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 DIFPERENT FUOM RIGHT. 137 L treaty made lU make it, as >rder to found, title to indul- concessions." ning recngni.- '■ ofperpelual ;* liable to re- rs, contained wn nature ir- f it be thence Qd in a treaty all the other lent, it must ! of the same, acter of one ;an have no gh conceded "a strict and themselves. between a ithin British crties within a dependent, he necessary :nnot be cor- jknowledged ience of the it had been to make the he provision- idependence he treaty or iknowledged vocable. A be destruc- Jower is ne- nt is made, n justly as- ition cannot 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 liberty to fish within British limits, 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 n cess 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 I'ight 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 difiicult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapt- k i A i "I ^: 138 LIBERTIES DISTINCT FROM RIGHTS. I I Mi'' ''l* tates are in ed by good if she con- tests any one o" them, it is to her engagements only that the United States c. n appeal as to the rule for settling the ques- tion of right. If tiiis appeal be rejected, it ceases to be a dis- cussion of right, and this observation appiies as strongly to the recognition of independence, and to the boundary line, in the Treaty of 1763, 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 ackno\vledged without any treaty, and that the acknowledgment, in whatever mode made, would have been irrevocable. But the independen.;e 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 they 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 strictly 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 itself a confirmation of the permanency of every part of the article," for that, " upon the common and equitable rule of construction 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 enjoyment of the same liberty, conformably to the 4;''t A' k ."I ,'i it; fl 4^1 ■t ■ ;i 140 CONVENTION OF 1818. change of circumstances, corroborates the conclusion that the wiiolc purport of the compact was permanent 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 tbey remained unsettled was secured to the citizens of the United States, in common with British subjects ^^for ever" 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 commis^sioner 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. n ■if ^ 141 inclusion that rmanent and ve been made from the im. Jiscussed, and conducted on was the con- by which the of the British insettled was common with •arties to this acknowledg. the point at ler the provi- is of a mixed y war, whilst 3 of the thing provision, or ' the obliga- ;rtion of the onvention of thing recog- vention must of it the na- d, both par- itle were of [rounds; the 1 the nature the United jnised by a CHAPTER Xr. NEGOTIATION BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 181S. Treaty of Ghent, 1814, — Negotiations respecting the Restoration of Fort George. — The United Stales replaced in Possession of the Post at the Mouth of the Columbia River.— General Negotiations in London, in 1818. — Proposal on the Part of the United States. — Convention of 1818. — No exclusive Claim on cither Side. — Western Boundary of the United States by the Treaty of 1783.— Treaty of 1 7'J4 —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 1808. — 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 Groat 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 without delay 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 I, 'H- 1 'I ' I . ' .\ ■a ■ J 5) !• 142 RESTORATION OF FORT OEOROE. ^ i L\., V'' ' ' II'* -»;■■•■ U^ 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 Castlercagh 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 thai, 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 theje 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 United States, involved in this con- i; , * 4 PIIESUMPTTON FROM POSSESSION. 143 cern ; and the unwillingness, for that reason, of tliis Govern- ment, to include it ainonj; the objects of serious discussion with them. At the same time you might give him to under- stand, thoiigii not unless in a manner to avoid every thing offens'-vc in the suggestion, that from the nature of things, if in tne course of future events it should ever become an object of serious importance to the United States, it can scarcely bo supposed that Great Britain would find it useful or advisable to resist their claim to possession by systematic 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 inconsisteat with a very wiso or friendly j)olicy, to watch with eyes of jciilousy and alarm every possibility of extension to our natuial dominion in North America, which she can have no solid iatorest to pre- vent, until all possibility of her preventing it shall have vanished." (State Papers, 1821-22, p. 464.) Lord Castlercagh in the mean time had admitted to Mr. llu&i\ that in accordance with the principle of statu quth which was the basis of the Treaty of Ghent, the United States had a right to be reinstated and to he the party in possession whilst treating of tJie 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, 1818 ; 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 suam esse probare, reraanet in suo loco possessio." But, beyond \ ' -t I . I- i' « !!' 1 1 ' ! ' 1 • .1 >> \ ' *i ' '.'f ; ' », 1 ''f ■ 1 ■/''/ta !l III. I I : 1 li ifr'.i I ! ;. iiil ■i!!! ';^:ailU !l it \ 144 PROPOSAL OF THE UNITED STATES. this, nolliing was conccdrd. Doubtless, in order to oust the United States, it would now he necessary for (Jreat iJritain to make out a j)crroct and exclusive title, which she docs 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 tlie 49th degree of north latitude, from the Lake of the Woods to the Stony Ptiountains,] due west to the Pacific Ocean. We did not assert that the United States had a perfect right to that country^ but insisted that their claim was at least good against Great Britain. The 4Uth degree of north latitude had, in pursuaiice 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 bo continued to the Pacific Ocean. So far as discovery gave a clann, ours to the whole country on the waters of the Columbia River, was indisputable. It had derived its name from that of tho 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 befoje the British traders from Canada had reached any of its waters ; for it was now ascertained that the river Tacoutche*Tesse, discovered by Mackenzie, and which he had mistaken for tho 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 establish- ment made in that quarter. The British plenipotentiaries ) oust the Jirilain to ocs not at- y the offi. Ihe Treaty that they ut. lied on in ) between boundary settlement carried off y of corn- ly Messrs. 18, that in fn mission • Jary line, the coun- iced us to along the Woods to an. We jht to that d against e had, in initely as those of rritories. ded their tinued to , ours to ver, was of the had first red from 3foie the waters ; e-Tesse, 1 for the into the ; at the itablish- mtjariea CONVENTION OF 1818. 145 asserted that former voyaf»c9, 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 'ho most convenient that could bo 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. 161).] These, negotiations were brought to a close by the Conven- tion of October 20, 1818, in which, however, nothing defi- nitive 'vas concluded in regard to the settlement on the Columoia river. Bv the third article it is agreed, that anv such ccuntry as may be claimed by cither 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 naviga*'on of all rivers within the same, be free and open, for th( lerm of ten years from the date and signature of this treaty, to tho 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." [Ma-tens' Nou- veau Recueil do Traites, iv., p. 575.] 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 the Lake of the Woods on a due west cours^c to the River Mississippi ; thence by a lino to be drawn along the middle of tho said •■■ ^}' ]'\\ ■ ' ' ' . '!i 146 EXCLUSIVE CLAIMS ON NEITHER SIDE. I ■ • I « 'f' : I 1 ., :l ;''!•!" Ilh!i-' I i^^^ '0 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 this 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 1 SOURCES OF THE MI8SISSIPFI. 147 ;rnmost part t the time, ibia river in r, there was to territories 3s were the isippi on the the Treaty e sources of ited by the lat a "joint falls of St. J said river, de ; and if, lat the river id line, the cable nego- ice, and in This joint . Thomson, crmined the 7° 38', and d be drawn ake of the the head' convention King and y should be the Woods ssippi [Bri- ] It is to IS letter of letter of Louisiana] high lands its waters, ine drawn ods to the I between , however, f the ces- ity signed 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. Udefonso 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 nortiiern 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. 594.) 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 precedin*^ 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, llistoire des Trailcs de Paix, ch. 40.) Mr. Greenhow, (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- 4. :\ ■■A. •f ■ \- j m ■ '- 'h^ ■ •■4 '^' f ■ i ijli i* . 'V ! ' ' t- ,t '■' -^l 1 'l , , •■; ' ' ■■# '] 1 • ;■ ; j. ' «: i«ti j'iii 148 COMMISSIONERS UNDER TREATY OF UTRECHT. rallel had been adopted and definitively settled, by commig. 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 States, 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 »vere 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 Ulrecht 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 a-ppertaining 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 oilier 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 tlie 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 leaving the boundaries between Hudson's Bay and the north CUT. by commis. f the trecaty ne between louisiana on Bay on the y confirmed the part of ere ceded to 3d as before, je same fact 1 States, in the western tate Papers, ry reason to nted, in ac- rminint; the issions, they er definitely y supported )pendix, but rticle of the •eaders into lisiana was 3n the con- -" But it is by commis- iinits which on and the ts both the bid to pass land. The escribe and Hher British Commerce, ■ the events elded to the full right irts thereof, 3 ; yet the if the north 11 HUDSON S BAY BOUNDARIES. 149 'parts of Canada, belonging to France, to be determined by commissaries within a year, was, in eflect, 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 boundaries therefore have vrver 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 'lo principle of ubi possidetis should be the basis of the nego- ;. ins between the two crowns. By the tenth article, how- :• c:., 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 ail 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- 1.! 1' i ■.:n ir 1 1 j 1 \ * , i ,y- , j, ■ .1 . 1 !■ i 1 1 ' '. ' '' ' ' \i 1 ( ' .: «■ .; ;?: If ■!■ > '!! I ill ■'■!-ti9 I'-^a K -i 1 V^^:^! >y! !';.:• IP: i -. ? i''''-: l-'- IS 150 BOUNDARY TREATIES. treine 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. Amher&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, yrom 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 aggregat») 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 nq.ture corresponding, and from LIMITS OF FRENCH POSSESSIONS. 151 agreeing to certain parallels of latitude, as appearing from those maps to form good natural frontiers, but which have beon 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 i , •: r • 4'' ' fcrn It- ■4- ^ ; ' ■ 152 NORTHERN LIMITS OF THE ILLINOIS. ■ 'I* ■ ' ;,#■■ were implied by that treaty to extend up to the Red Lake and Lake Travers, 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 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 America, and thereby west of Canada and New France," unless it can be shown that the Illinois country extended to the west of the Red Lake, which was not the fact. This question, however, will be more fully discussed in the next chapter. 11 I 111 III: ^il! il: .I'l 153 Red Lake •"rench title authorities s boundary ly negative id "to the in North V France," xtended to act. This 1 the next 1 CHAPTER XII. ON THE LIMITS OF LOUISIANA. Hernando dc Soto discovers the Mississippi, in li *^~- Iritish Discoveries in 1654 and 1670.— French Expeditions.— Dc la Siille, 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 1769. — Retrocedcd to France, in 181)0, by the secret Treaty of San Udcfonso. — 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 dc 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 was 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 •1 • I' ■t^ ■ fl , \ ■ :• -'. ' . ?. 1 «, 'T ; ■ ' > *■ lii ilip V ■" ■ ■ 154 FRENCH EXPEDITIONS. along the coast until they arrived at Panuco, which was the northernmost part of New Spu.n, being within a few miles of the sea, a little higher up the river than the modern Tampico. (Herrera, Decade iv., eh. 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 '^o 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 JefTerys' History of tho French Do- minions in America, published in 1754, to the eifect 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 IP"*, in searching its source, as also by Captain Bolt, in 1 „ . ." No further particulars are given by JefTerys, 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." v\l'!':!^!li' ' it CROZAT S GRANT. 165 ch was the !W miles of I Tampico. id Foreign ve availed Mississippi , the north- it explored ter portion 277) has ^rench Do- that " the a, which it J by CoJo- •4 to lfi^% in 1„. ." it may bo ubjects. ninedupon w France, le Spanish [V. issued lim to ex- Is the end February pi, by fol. down the following, the name ana, from led Ohio, "t or Mis- into it, >uessious, and " up- le natives were the said river may in ries, peo- 3 right of IS herein 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 treatiseon 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 prcsentes, signcs de notrc main, eta- bli, et etablissons ledit Sieur Crozat, pour faire seul le com- merce dans toutes les terres par nous possedoes, 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, ensem.ble les rivi- eres St. Philippe, autrefois appellee des Missourys, et St. Hierosme, autrefois appellee Ouabache, avec tous les pays, contrces, lacs dans les terres, et les rivieres qui tombent di- rectement ou indirectement dans cetto par^ie du fleuve 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 tiemeurera subordonne ; et voulons en outre que toiUes les terres que nous possedons, depuis les Illinois, soient reunis, en tant que besoin est, au gouvernement general de la Nouvelle France, et en fassenl partie : nous reservant neanmoins d'augmenter, si • I ■ > 150 4 i LAW a MISSISSIPPI COMPANY. I . ■' * . t ■II M nous le jiigeons a-propo?, I't'tenduo du gouvernement du dit jtays de Loitisiam." Louisiana, it will bo thus seen, according to this nuthorita* live document of the French crown, was the country water- ed by the Mississippi, and its tributary streams from the sea- shore to the Illinois : such was the limitation affixed 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 Franco. 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 Buy territories and French Canada were settled by the peace of tltrecht, 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 Compag^e 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 tho pro- vinces of Canada and Louisiana. The British Government insisted, as already stated, p. 150, or i 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 Briiish pos- sessions, as part of Virginia, or occupied by Indian tribes. In the course of these negotiations, 'he 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 Illi- '1! ' VALIDITY or CIIARTCU3. 157 ent du dit authorita- ry watcr- 1 the sea- cd to the lamo pub- ons were I true that )y a royal irter, and ompany ; ) and the annexed inada, in ranted to ts of the settled by at treaty I subjects itlicts on >f this ob- from the lonopoly 1 the an- consid> th-i pro- ernment mid take 5 Ohio ; country iish pos- ibes. In ludreuil, of what he con- e officer him the extend- [Vfiamis, le Oua- he IllU >» ixois." [Annual Register, 1761, p. 2G8.] Kvcn thus, then, all to the north of the Illinois was admitted to be Canada. However, the French Government, in its memorial of the 9lh iScptembcr, 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 were declared to be thenceforth limit- ed by the mid-channel of the Mississippi, from its source to the River Iberville. The Treaty of Pans, 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 Ildcfonso, 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 made, 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, bv their own intrinsic force, 8 4 \'' ^ 163 WK-STERN LIMITS OP LOl'ISfANA. I •. ,< ;,> can only hind those who arc sul)jcct to Iho authority from which they emanate : against the snhjccts of other states they can only avail on the supposition that the title of the grantor is valid hy the law of nations. Thus the charter given hy Charles II. to the Hudson's JJay Cornpanvi granted to them, hy virtue ofthr. 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 (tcfualh/ possessed hy any of our suhjccts, or by the subjecis of aiit/ 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 Mens. Frontenac, then Governor of Canada, did not complain of any pretended injury done to France hy the said Compa- ny's settling a trade and huilding of forts at the bottom of Hudson's Bay, nor made pretensions to any right of Franco to that bay, till long after that time." [Anderson's History of Commerce, a. d. 1(570, vol. ii., p. 516. J Jn 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. 283,) 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 bounda- ries of the Louisiana ceded by France to Spain in 1762, and retroceded to France in 180(', and transferred to the United States by France in 1803 : but then it must also be admitted, for tho same as well as for another and stronger reason, that ilhority from cr states tliey '' the «^rantor rter given hy itcd to then), all the lands, y called Hud- rssed by any islian Prince mtecedent to n support of Bay, " that not complain said Coin pa. ic bottom of t of Franco I's History of r words, the other sub- r itself; but 'inciple that and, at the^ subjects of )cct to any rfcreiice of gainst that line extend either if lie form of t assuredly were the loritatively nining this lore direct regard the ands scpa- )wing into n boiinda- 1762, and le United admitted, SOP, that i CONFLICT OF TITLES. 150 the nritish possessions further north were bounded on tho coast by the same chain of highlands; for tho charter of tho Hudson's Hay Company, on which the right to those posses- sions was founded and maintained, expressly included only tho countries traversed by tho streams emptying thcrasclves 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 tho name recognised in the charter, to the plani.:tion in Hudson's Bay, and the countries traversed by the streams emptying themselves into the Bay ; but the right to those posse isions, as against France, was not founded upon the cha or, but generally upon recognised principles of international law, and especially upon the Treaty of Utrecht. So in respect to i:o northern limit of Louisiana, Crozat's grant, or tlu /rant to Law's Mississippi Company, might be alleged again.l iVancc, to show that its limits did not extend further nonh, 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 sourcrs 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 Franc r.nd Spain. France seems, indeed, from the words of Crozai\:> ji^rant, 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 Fc, 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 JEFFERTS HISTOKY. ! ' i' ! liii'lft I' u-v- Ikii/; ' '' 1 ■■■■■ i 1 Papers, 1817-18, p. 438.] The United States, indeed, on succeeding to the French title, declined 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 westwardly 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. Eiicarbot'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 deqa du tropique du Cancer ; au midi , les cotes de la mer Atlantique du cote de Cube et de I'Isle Hes- pagnole ; au levant, la mer du Nord qui baigne la Nouvelle France ; et au septentrion, cette terre qui est dite inconnue, vers la mer glacee jusqu'au pole arctique." The same author cites a map of the year 1757, as confirma- tory of this V iew, 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. Greenhow, in the nc.v edition of his work, p. 159, states, that this map was drawn and presented by the French commissaries appointed under the Treaty of Aix-la-Chapelle in 1748, to expose theextrava- i PI AUTHORITY OF MAPS. 161 ndeed, on t that the Lst as was Jefferson, vn claims ide of the course."] )ns to the id to the he bay of • the Brit- inada and iominions ranee did ;h.west of it is kept 47° 35', ugh Lake son River It 45° 40'. limits of continent has been such an ever ad- France, its limits be seen France," Nouvelle a la mer midi , les [sle Hes- Nouvelle iconnue, onfirma- 1 45°, on which is t he nc'.v drawn ed under extrava- gant pretensions of the British in North America, and that it docs 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. ^ f'l J 162 CHAPTER XIII. * 1 1 i\ \ t ».'•■ i '. !.« 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 1817. — IvI. Kcrlet'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 the 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 tho United States. — Question of Rights abandoned. — Object of the Spanish Concessions. — Santa F^. — Ultimate Agreement — Review of the Claims of the two Partiesv — Principles of international Law advanced by the United States. — Possession of the Sea. coast entitles to Possession of tho interior Country. — Vattel. — Inconsistency of the Diplomatists of the United States. — Treaty of Paris. — Natural Boundary of conterminous Settlements, the Mid-distance. — Vattel. — Whcaton. — 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 Wa.shington be- tween Spain n nd 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 Lwcen Spain >f Louisiana, iin, Crozat's cs the ]\Iis. losc to cross ■ Mountains a in proposes 'f41° totho elish's Map. ific. — Spain lat River to ource of the ploring Ex- hts of Spain States de- States to the 'he Spanish dent of tho the Spanish the Claims ;ed by the ?sion of the tists of the nterminous [uisition of pean Pow- was con- reat Bri- gton be- of deter- ouisiana lad been at Spain na, with •ain, and it ought between Papers, 1S17-18, p. 267-.n.) The Treaty of 1S03 in i(s turn ceded Louisiana to tl o » nitcd States, "in the name of the French republic, 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 Floridas, and on that of New Spain. An examination of the discussion regarding the eastern boundary towards the Floridas is unnecessary on tho present 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- menta or Marraentoa, 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 declined 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 '.' * . I > fj'.;;. j,.j '4 ■ ' 1, ■ ' ' ■I'm ' i"* ■ '^: ■ . ,-, ,.,^ '.i:- :- } ife- f; ■■■•: ■■ ' i \ ;■■.,.. m. in*,. ■.' r w ■; 1 , ' 164 PROPOSED BOUNDARY. the greater part of West Florida, in 1810, by the United States, without any declaration of war, or stipulation of peace, which could seem to authorise it. On re-opening the ncgo- tiation in 1817, the Spanisli 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 extert 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 i!'; THE COLUMBIA RIVER. 165 5 United of peace, he nego- aived al] oridas to hich lies lit which 1 France he death vince of joundary se of the Spanish 12th of grant of ouisiana, m many 'o Spain ts proper i by the 1 ambas- of Lou- le other d States, dged by 2, were rozat." Texas, uisiana, ward by ward to d of its in con- jnts re- 24th of causes sions of be de^ etween Arroyo- he Rio \ Roxo, or Red River, at 32° of latitude and 9>° of longitude, from London, according to Mclish'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 ihe 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 olTered, as the ultimatum of the United States, a line from the mouth of the River Sabine, following its course to 32° N. L., thence 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 lothe 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 Pacijict 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 I oint, should run by a line due north to the Arkansas, and 8* •i«ii' ij ',.• ■m< •-, ! '•;'■; ■ ill ■ A'- n i I ■ i: : ?■;■ ii 1 1. '■ 166 along THE MIILTN03IAII RIVER. th( source, thence by a line due west till it strikes the source of the River St. Clemente or Multnomah, in lati- tude 41°, and along that river totiie Pacific Ocean: the whole agreeably to MeHsh's map. 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 1 00th parallel of longitude west of Greenwich along the middle of the Arkansas to the 42d parallel ; " thence a lino 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 13th 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 be drawn from it south or north to the 42d parallel. It was fortunate that this proviso was adopted, 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 tliis river is ascertainad to ha very 111 lie further south than the 44lh parallel of latitude, as may be seen in the excellent THE C ALIFORM A3. 167 it strikes , in lati. Iio whole narkablo st maps, ical fca- 3US error id before rom the he Mult- in reply, ' the Ar- long the i ; but if I of 41°, from its he sea." s d'Onis ine from long the ;e a line itude, to lah, fol- jde, and Another 13th of arties to rkansas it if the 42°, the parallel, ual sur- ;as to be atitiide. )le want ioner in drawn, ource of 42° due jurce of h than xcellcnt American ma,* attached to Commander Wilkes' Exploring Expedition, though even so late as in Mitchell's map for 1531 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 dcs Traitds, 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 thf> 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 15y2, 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 serve 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.) 3Ir. Adams, in his reply of January 16, 1818, stated that ** the President of the United States considered it would be an unprofitable waste of time to enter again at large upon topics of controversy, which were at that time [1805] so ■ ',■ ■I # i! t! 5f -It ^ii^i ■WJ- ''i| ,!!li fmrn 'S i« iP^iii 1G8 NEGOTIATIONS DUOKEIV 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, 1817-18, 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 vallej' 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 States. Confining, therefore, myself to the ff:% I'LAN OF THE TRESIDENT. 169 thing in by Don cluci- part of ibre, no- Spanish ifornias, the pre- ^olorado 3 to the ary ; or mt." It United of the isissippi. tier was )een ex- 1, 1818, States, namely, did not h Spain 1 Moun- hat the Missis- reach of n these Adanns, did not and the e north. during 3ed the position for the om his of the posses- de and stated to the 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, 1818, [ibid. 291,] writes, " As you have now declared that you are not autho. rised to agree, either to the course of the Red Kivcr, [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. 602,] 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 obliquely 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. 665,] 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 r A\ [f . \ . m ffin' n,.. 'i 1 ! ■ t 1 \- ■; i ♦ j: i \l- 11"' I'll mm m -... I^^H 11 If 1 ul Jk' i^. 170 SPANISH CONCESSIONS. neither the Red River of Xatchilochos, nor the Cohiinhia, ever forrnecl the boundary of Louisiana ; hut as you have inti- mated to me that it is uschjss to ])ursuu tho thscus.sion any further, I acquiesce with you thori;in, and I agree that, keep- ing out of view the rights which either party may have to the territory in dispute, wc should conlinc 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 aduiit 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 lino 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 different 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 13, 1319, still re- CONTKAST OF CLAIJIS. 171 'oliiinhiai avo inti- sion any at, kcep- ve to the 10 settle- interest isidering f extond- (ibia, and ih of tho I, all the umbia, I satisfy ht of tho II, as far no room in a few ubstituto the Red the 95th ould run 1 thence, liver St. lat river Melish's repeated rom the the pa- itions in Spanish ont line, e 42° of he same nente or 43° of (Ibid. still re- 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 do Onis, on tho IGth of Tebruary 1819, ultimately agreed " to admit the 42° instead of the A'\° of latitude from the Arkansas to the Pacitic 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, : id thus serve to ex- plain the fueaning of the third article of the treaty. Spain asserted her right and dominion over the northvv<.st 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 tho 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 tho 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 Now Mexico, and the Californias ; the rights, claims, and pretensions which the United States ceded to his Catholic M;ijesty 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 tho United States to territory beyond the Rocky Mountains, and the object of tho 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, t : 172 POSSESSION OF THE SEA'COASl according to the limits marked out by Louis ..iV. in his grant to Crozat. In the course of these negotiations, we find certain princi- pies ot' 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 2Uth of April 1805, as "dictated by reason, and adopted in |)ractice by European Powers in the discoveries and acquisitions which they have rcBpectively made in the new world ;" and Mr. Adams, on the 12th of March 1820, 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, 1817-18, pp. 327, 407.) The first is, " That whenever any European nation takes possession 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," write 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 principle is departed from, it must be by attaching to such discovery and possession, a more en- larged or contracted scope of acquisition ; but a slight 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 improper ; that is, that the nation who made such discovery should, in all cases, be en- titled to the whole of the terrilurv so discovered. In the I EXTENT OP SETTLEMENT. 173 V. in hia lin princi- isioners of disputed ter careful formally ctated by ers in the spectively le 12th of anctioned ce of the and held sign State Hon takes is under- lources of branches, exclusion •00, (ibid., ho rights ich cases, to which sent one. it. Na. described parts to- detached 1) it must more en- jht atten- of either. European country, d, a doc- ivers who :a. The that the !S, bo en- In the case of an island, whose extent was seen, which might 1k) 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, wu find, that this opposite ex- treme has been equally disclaimed and disavowed by the doctrine and practice of Eurofjcan 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 ])rinciplcs. The one laid down has obtained general assent. " This principle was completely established in the contro- versy which produced the war of 1755. CJroat Britain con- tended that she had a right, founded on the discovery and possession of such lerrilory, 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 Britain in the treaty of 176M, which established the Mississippi as the western boundary of her possessions. It was opposed hy France and Spain on the principle 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, dec." 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 terrce dominium fini- tur, uhifinitur armormn 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 tho i ) It f '■■ 174 INCONSISTENT ARGU.AIENTS. ■'1 M ;. i; ;1 if'' • » ■ 1 hiw.- . si_ . Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1 Paine, 457, "that under the second article of the treaty with Great Britain, the precincts and jurisdiction of a fort are not to be considered tlirce miles in every direction, by analogy to the jurisdiclion 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 (Vattcl, 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, within 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 oronounccd to bo the stronger of the two. Eng- • Do land has had at least the advantage of the result, and would seem to bo 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 aJ.opls the same view of the early European settlements in North America, that the respective nations "claimed for their settlements usually, specific limits CONTERMIXOUS SETTLEMENTS. 175 ruckson V. iclc of the iction of a direction, at portion made out ■ecof^nised )ry for tiie ich an ex- Jey intend of which the settle- ns. The regulated practice. 3, Messrs. overy and I the coast he whole iipty into hat coast. power to plain and if France diiced by est sanc- lettcr of contrast, t Britain, '•If the ested by ity west- vo. Eng. id would )lo — par- that re- and her ry, have In other be early ispcctive ic limits along the coasts or bays on which they were formed, and gone- rally a region of corresponding width extending across tho 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 tho 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 tho 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, tho stronger claim has each party to a portion of it, as requisite > ,' r :^: il ■ J 1 1 i 1 ^■* -:■? • I '* ) '5 H' \'\. mm ,! ;'i \ , !>;!' ■- >i II 'i , ; i f-T Js> h' ■ ^i'' ^^ J;u„ .^ _ 176 ACQUISITIONS FROM NATIVES. for its own convenienco, 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 thr 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 OP PRE-EMPTION. 177 tended with B explicitly forms the le channel, aration be- ig, that the resumption pancy, and parian pro. unoccupied 5ments, the the line of t to either 'onger pre- 'n favour. , that " by ade by M. ablishment he United the middle 5t Spanish rovince of ^ principle y us, it is ial, as the onnection jrstood, as Bravo, on The practice of European nations has certainly recognised in the nation which Las first 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- emptlofi, 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 aubscquent chapter. '; m nation y on that fee ted by "rants, or that this bly, since ons there, trated by tncerning viz., the 3." *\\ f s V . ,v . T • i, 178 CHAPTER XIV. NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED STATES IN 182:J-24. Proceedings in Congress after the Convention o' 1818. — Russian Ukase of 18'2I. — Russian Title to the North-west Coast of America. — Declara- tion of President Monroe, of Dec. 2, 1823. — Protest of Russia and (ircat 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 tiie 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 IIou.sc of R(!presentatives in Congress.^ for un " inquiry as to the situa- tion of the settlements on the r*aciric Ocean, and as to tlio expediency of occupying tho 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 sufTcred 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. 33-2.) In the mean time the attention of both Powers was arrested by the publication of a Russian ukase on ICth September ir ,!. HE UNITED ussian Ukase ca. — Dcclara- RuBsia and laim set up by lin Gray, and le Mouth of a h Objections. I private En- nal Ship for Answer. — Pre. n 1578.— Mr. Britain west- States to tho British Corn- Branch of tlie to the Sea. — E)° to the Sea. untry west. 5en, for tho jaty, to tho ■s, without Two years House of ) the situa- as to tho and a hill on of tho Indians in ivever, was ugh it was no further 3enhow, p. is arrested September DECLAHATION OP PIIESIDKXT MONROE. 170 lS21,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 Emperor* 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 tho free and independent condition which they had assumed, were henceforth not to be considered as subjects for colonisation by any P2uropean 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 Jcssup, the Quartermastor-General, in which it was proposed to establish certain military posts between Ouncil Bluft's on the Missouri, and tho Pacific, by which, he add*, •' present protection wouJd be atForded to our traders ; and at tho 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 .fuly, 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 ponding 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 tho part of the E.xecutive of the United J . ' 180 CLAIMS OF THE UNITED STATES. i. ' •]•■■ (ft-- i V V ■ States were not calculated to facilitate the settlement of tiic points likely to become subjects of controversy in the approach- ing negotiations, cither at St. Petcrsburgh or at l^ondon. 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 right" to the country west- ward of the Stony Mountains, but 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 tixed indefinitely as the line brtween the northern British possessions and those of Franrc, including Louisiana, now a part of our territories. There was no reacon 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 Rivor 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, nd as their absolute and exclusive sovereignty and dominion, the whole of the country west of the iiocky 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 eflfective settlement ai its mouth : a settlement which was re- duced by the arms of Britain (iiiriag 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 the Columbia extended, by the River Multnomah, tu as low COLOKIAL RIGHTS OF SPAIN. 181 cnt of tho approach- : London, isioners of a letter to an, of the the British e previous 3. Gallatin ntry west- heir claim 9th degree f Utrecht, northern Louisiana, r>n why, if , the same So far as •y on the ibsequent- ajesty had ington, of eaty, '* all north of pened the ired from ted States rs on that ed States exclusive ■ west of up as tho ted upon up by an 1 was rc- t formal- of peace. >eculiarly Captain rke, who inland ned that u as low as 42 degrees north ; and by Clarke's River, to a point as high up as 61 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, hy 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 teas 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, that 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 tho 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 !:•: :m: ■ ^'^-^fj f ■ 1 ' j i t ■ •': •1 i 1 4 i ;. i: : . li . f , i i ' '■ '''? i r. -^1 '■ , ■■•? Il'/:,' ': ' ■ ..} 1, ■'\ isa FKOFOSAL OF THE UNITED STATL':*. of Europo, and that this was a principle upon which [ shoufd 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 be made by citizens of the United States north of 51°, or by British subjects soutii of 51", inasmuch as the Columbia River branched as far north as 51°. Mr. Adams, however, in his instructions, concludes with these words : — ** As, however, the line already runs in latitude 49° to the Stony Mountains,shouId 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 proposaf, 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 51st 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 rehnquish. 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 coufd 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 Britisli government was yet to be informed under what principles or \H MR. BUSH 8 REl'LV. 183 ch r should o make on no settFe- tatos north iich as the Ir. Adams, words : — ) the Stony at Britain, ne parallel s, on their d the prin- y said that ed parts of like man- ts, as weJI ic 42d and irinciple of on of those t j)repared to the ex- y her con- conceded where ac- idered the She couid anish title, when ad- le credit of otentiaries their own in the ne- ice. Her bia River ons of the ing qiies- Ihe validi- y been on le Britisi* nciptes or 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 States having peni'trated 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 (Jook, 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 overreach, in point of time, any that Great Britain could allege along that coast, on the ground of prior occupa- lion 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- ment to be drawn into question. It was a fact before the whole world. The very geographers of Great Britain had adopted the nanie 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 /■■ ll . I 194 DISCOVERT BY CAl'TAIN GRAY. •■ r- ' ' < M "■ %\ ■I', § ■.■it',1 l§ States," he said, '* could admit of no such distinction ; could never surrender, under it or upon nny ground, their claim to this discovery. The ship of Captain Gray, whether fitted out by the government of the United States, or noi, was vl national ship. If she was not so in a technical sense of ihe 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 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 bo 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. Ilore I instanced, as sufficient for my purpose, and pertinent to it, the terms in which many of the royal charters and letters pitcnt had been granted, by the Crown of England, to individuals proceeding to the discovery or set- t^cment o^ i.ew countries on the American continent. Amongst others, those from Elizabeth in 1578, to Sir Humphery Gil- bert, and in 15S4, 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 ihe 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 nction ; could their claim to ither fitted out was a national i'txa word, she occasion. She >rth under the ified with the )g to this dis- on a principle , because, as )ot of a first snlargingr and r than that of iown, both as ible to its use Europe had their clain;s r my purpose, of the royal y the Crown covery or scU nt. Amongst miphery Gil- from James the Georgia ant is passed ^er Savannah river, called of the said 'o show that in her terri- the rule of aries, I also hich 'all the or indirectly ended under 1 States from ain had put ded on prior ished any, at CLAIM OF THE UXITED STATES. 185 any period, founded on prior (liscovfry. The superior title of Spain on this ground, as well as others, was indeed capable of demonstration." Russia had arknowhdiicd it in 1790, as tiio State Papers of the Xootka 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 ; fo lilst by it the nations of Europe generally were allowed . 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 177.5, kept by Don Antonio Maurelle, for an ac- count of which I referred the British plenipotentiaries to the work of Daincs 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, 5.5, 50, 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 icbl, 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 tho place of Spain, and holding in thei.r hands all her title." ^. o.>r«^''^ V2 ^>. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^*s&^ Photographic ^Sciences Corporation '^ '^o {./ ^ ^^A^ /- J ^c \ ^ ,v A z 1.1 l.-^is ^ |LS. |i.25|u [; ^ — 6" •S5 S> 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) S72-4503 "^f'^" ^ ^ K ^ o^ .•1' t - > h r. '• f. '. ,, i i ■ 1 ' \ , i * • 180 nniTISIl 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 coiisent 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 .cas, and but that idmitted : They re- Court of only as- 1 naviga- 5 co;isent it proper jpied by t Britain, to other long that ification. I naviga- ts, even the fact, )ignty or elude all es, they coast, at If had a t Drake's coast on I formal d giving ley corn- thing in ^en take 3 United although ; that he )out the higher than 43°, having put back at that point from extremity of cold. All the later authors or i ompilcrs, also, who spoke of his voyage, however they uiight ditfer 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- ponderancc 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 pn points o accept mpliance n ground ns of his is 49° in derstood, orised to B, I, too, tS) in the )f claims dispute.'* this pro- ^ modifi. ght to a CHAPTER XV. EXAMINATION OF THE CLAIMS OF THE UNITED STATES. Exclusive Sovereignty for the first Time claimed by the United Stalea 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 4G° 30'. —The Nortliernmost Branch of the Columbia discovered and explor- ed by Mr. Thomson. — The Pacific Fur Company not authorised by tiic United States Government. — Tiic American Fur Company, chartered by the State of New York in 18U9, 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. — Protoction of the National Flag. — Vattel. — Kluber — Letter from Mr. Gallatin to Mr. Astor. — A Commis- sion from the Stat* 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 Boun- daries. — Different Principle advanced by Messrs. Pickncy & 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 ti.c Mississippi. — Inconvenience in applying the Principle. — Conflict of Titles. — Course of the Columbia River. — Valley of the Columbia River docs not extend across the Cascade Range, on the North Side of the River. — Derivative Title of the United States from Spam. — Spanish Vtrsioni 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. Hush and Gallatin, in the negotiations of 18'23-24, 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, in their 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 resjiect to the discovery of the river, they alleged the 9* ■ M .. 190 SOURCE OF THE MULTNOMAH RIVER. \ ■ . ■ i samn facts as in l'^18, namely, tliat Captain Gray, in tlio American ship Columbia, lirst discovered and entered its moutii, 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. 'J'hc American plenipotentiaries j^rounded the extent of the exclusive claim of the United States, in their own rii^ht, 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 u[ 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- preeonted 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 inouth 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 VVappatoo 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 Com. , in tho crcd its plored it cnt, the having tho re. nt of tho ht, upon iibia ex- rth, and : bcvond so state* ing the chapter port, in find tho atitude, cing rc- ty itself oa. In icpressly leir way ind it to lat » the 3 name, d lies in nel into !, which IS below accord- ery fer- Colum- of the accord- p. 349, \o have Actual ip, has nomah, Clarke \ Com. rAr iric Yvn comtanv, 191 mander Wilkes' map dotormincs it to be in about 40*^ 30'. It i3 the same as tho Fl.ithrad ltivor,and it joins the mainstream of the Columbia a little below the 4i)th parallel. It thus ap- pears that neither of the rivers upon wiiich Mr. Rush relied, supports his claim to the c.\tont which ho maintained. Had he grounded the title of the United t^tntos 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 tho 42d parallel to commence with, and Clarke's River would have carried the claim of the United States u|> to very nearly 49"^ at its iunctton with the northern branch, but no higher. Lewis and Clarke saw nothing, and knew nothing, of the northernmost branch of the (,'olumbia, 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 18 11, as already (p. '-31) detailed. In reference to ilie 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 Statea Government to make any elfective 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- sorts the fact, — " that the United States Government, though earnestly solicited 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, wiiich 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 the 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 t' 192 ASSOCIATION AT ASTORIA DISSOLVED. 1 I wt . ■*^i 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 full 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 pait- 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- riiory 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. Prevost, as agent for the United States, Astoria for the first time acquired the national charac- THE STATE MUST TAKE POSSESSION. 193 e consid* distinct cignty of ession of to ac- of it, at )any was fact, not n, by an r, though tcs, as it " The " if sue. rties had ve years, that the he part- I the es- transfer- ompany, rrived on the pro- formally inic Ma- ^oxy and George, jd States . the ter- a person md from I Crown, ing pos- epresen- e British e, to the ttlemcnt s. The g of the B part of ing pos- 3 United charac- ter of a settlement of the United States ; and though the facts of the case, when better understood, might not have brought \storia 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 tlag 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 contempla^"?] was the dis- covery of a country with a view of taking ^ obsession of it. The practice of nations, according to Vattcl, Uns usually res- pected such a discovery, when made by navigators furnished icith a comtnission from their sovereitrn, 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 slate 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 f I •.' f. i i « "«■ 'i , i ? 194 MR. GALLATIN S LETTBH. by Iroalics of commerce, but tho ship is the property of indi- vidimln, and the captain is only the agent of the owners: ho possossos no authority from the nation, unhkc the captain of a vessel of tiic 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 (lag 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 1 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 Jla^ : for which purpose a lieutenant^ s command would be suflicient 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, was 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. ^^5^' COMMON USE OP RIVERS. 195 y of indi- rvncrs : ho ptain of a for whose The Gov. der, ahout iding ves. en, could in which of a com- mexed, in • Gallatin :— " Dur- ctobcr or these two o me that and to re- ie Ameri- id would n this to Juld con- t himself, ." This ed States \ the pro. territory, »mmerce, convey by every narks, ay's dis. iscovery, 3es, was it a na> ti of its allowed country r and its laration, le New acquies. he prin- Thc principles involved in this position seem to be, that tho discoverer of the mouth of a river is entillod to tho exclusive use of tho river ; and the exclusive use of the river entitles him to the property of its banUs. This is an inversion of tho 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 |)roperty in them only as accpiired through rights of property in the banks. Thus, Vatlel (i., § 268 :) " VVhcn a nation takes possession of a country bounded by a river, she is con* sidered as appropriating to herself tho river also : for the utility of a river is too great to admit of a supposition that the nation (lid 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 tho first possessor of all that |)art 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 (fiumina 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 fiowmg into the ocean, a common use is presumed, unless an exclusive title can be made out, either from prescription or tho ackno.vledgment 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 ITUS, by the 4lh 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 tho 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. i*r \ . f 190 EXTENT OF SEA COAST. " f,- '^-l t ■tin^ I » : , ,..» , Wlirnton to he nccossory to inhabitancy ; in other words, to follow the property in the hanks. The principle, however, upon which the commissioner of the United States d<'f('nd(;d his claim to attach such an extent of country to the jliscovery of Captain (Jray, was, that it was at once rvasnnahh and motlvrair : reasonable, because there must be some rule for determining the local extent of a dis- covery, and none was more projxr than takinp 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- crate, because the natives of Kurope had ()ftcn, 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 residt 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 mngnitude 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. Hut 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 sulhcient 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, propoimdcd a very dilFerent principle, viz. : "that whenever any I'iUropcan nation takes possession of any extent of sea eoasf, 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 they cover, and to give it a right in exclusion of all other nations to the same." Now Vattel (i., § 266) 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 if- tROZAT 8 GRANT. 197 I ^ r wonls, to issionor of 1 nn vxlvnt (hat it wns aiiso llifTo it ofn (lis- tlio wnter- ir limits of Iiie; mod- nder their or. As to that rivers of torrito- biit the ent of the 1(1 not the nwcvcr, to iifio of the )lo, or the o rnodorn- noderation 3 grants of ition, how- validity as in accord. President d by Mr. :tion with pounded a J'inroj)can mt posses- ountry, to ast, to all give it a lion takes 3, it takes akcs, riv« ite to the titlfi to the coast, and such is the rase in the charters of the Crown of Kn^land, which Mr. Rush alludes to as confirma- tory of his view. The (ieorgia Charter of ITIJ'J, for in. stance, of which he cites a portion, granted ♦' all the lands and territories from the most northern stream of (he Savan- nah river, all nloni,' llir sea roast to the southward imto the most southern stream of the Alatamaha river, and westward from the hcails of f/ir said rivrrs rrsprrtivrh/ in ilirrrf lines to the South Sras, and all that space, circuit, and precinct of land lying ?/•///*//» the said boundaries.^'' (Oldmixon's History of the British C'olonies in America, i., p. 52.").) The same principle is sanctioned in th(> 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 those 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 watercourses 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 '■•i ;'l h') ! , «■. ■■ i >' ;>. i; -. i k^ II I 198 THE COLUMBIA RIVER. find it lead to very great inconveniences. In the case of the Columbia 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 mo it'i 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 if 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 way 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- tcrnational law, that a " nation discovering a country by eh- 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 off the waters on their eastern side into the Co- m I DERIVATIVE TITLE OF THE UNITED STATES. 199 ase of the )Ie of the north lati- that lati. ' N.L., so would bo Ir. Green- le to what ! to make itorial do- ule, whilst sad to an i, the dis- i with the Frazer's er of the ursuing a elow 54°, Frazer's it all the id that all )le, which following course to 5t by the , and ar- it once to reat lake Itimately t empties ore, does ; but, as< le of in- y by eh- ist, must in extent lourse of ! United !)olumbia its tribu> le range ighlands the Co- lumbia, and on their western side into Admiralty Inlet ; yet, by virtue of the first entrance by Cray 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 Jicknowledged 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 (limits 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 tastern side of Prince William's Sound, and M. do Poletica, in his negotiations with Mr. Adams, maintained the authenticity of the statement in the two ofticial 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 4!'»° and 49°. (State Papers, 1825-26, p. 500.) Fleurieu, the French hydrographer, considers these numbers to be erioncous, and that 58° and 69° ought to be read ; but he gives no other • ' 11 i- K ^l, 300 RUSSIAN AMERICAN COMPANY. reason than 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 recogni?- 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 south 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. S33.) 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 Cpptain 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 Daines 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 ^ r the first time, some act of possession is usually done, an pro- claimed as a notijication 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 executioni solemn instruments of iscertained B south of So ^rees. recotrni?. it in 1799 can Com- ; coast as ivery of it :tend their such terri- md placed ', p. 333.) expressly- far as the ays mcin- mpted en- admitted ireover, it le of the lings and , or on is- cts of his middle of ) the said lush, that oyage of by every from San published cellanies. ions, that a patent ve publi- ;e of the y- disco V- d ' r the aii pro- inner, in ' intcrna- re words ations of ar coun- ments of CONVENTION OF THE ESCVRIAL. 201 E cession are drawn up, and adequate powers wcc formally given to the persons by whom the actual delivery 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 pubUc 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 ^pain 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 cDlonial 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 'li ■ •'; I •I'- II 2oa MEMORIAL OF SPAIN. trading with the n.itivcs of the north-west coast of America ; and of making scltlemcnts 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 making 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 franiers 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 thern 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'a INSTRUCTIONS. 203 •f America ; the purposes Spain, were ourse to the ivcntion of 3rd article, reed, " that )r molested, s in the Pa- \\e coasts of purpose of he country, riction here tntrary, the the landing ious that, if 1 been such 1 the article ose seas, or Y occupied, the natives ced by Mr. leld to give ged by the the treaty he antece- ial of the t is stated, in did not settlements hough she h on some irriving at imbia and that they ;re to refit, cao, under Jovernor ; a view to iw his in- 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 ^or 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 efilcted, diflferent 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 3, 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 »! t . 204 AUTHORIZED SPANISH ACCOUNT. 1 •^l V] if di ty '. the British flag, take formal possession, Ace. ; 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, Ace, 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^ claim 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 ■ 4 8ETTLEMKM' KUUIVALEN I" TO COLO^fl. 205 ► which the eady in tho )t. Colnett ousc in the 1 answered water, dec, leased ; but but to build the Crown wered, No ; »f his king, that, but it the coast ; t belong to nsact such ed, he was ing in the tion of the 2rfect bar- lent. Mr. his work, cntly than slation : — lie Enghsh le Enghsh ished with » him [iba Ion of the zstahlish a preclude ich object anifest an te contest captain. Powers, vastation, le posses- i Indians, Europe, lences to ibition or vanity of nations intervenes, and prudence and moderation arc wanting in contesting rights of property." Spain, at the commencement of the negotiations, expressly required through her ambassador at the Court of London, on February lU, 1790, " that the parties who had planned these expeditions should be punished, in order to deter others/rowj making settlements 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 {>ossession of such establishments as they should form with the consent \ii' the natives of the country, tiot previously occupied by any of the European nations. The word " establishment" here made use of is synonymous with "settlement," etablissement 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 sough i, ♦o 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 5th, 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, namely, 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 tho 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 discussion* ao t i I ' y* (■ ; . •■ ^ } * JOO LANGUAOE OF CHARTERS AND TREATIES. between Spain and the United States prior to tJie P'lorida Treaty, the sclllement in the Bay of St. Bernard, is the appellation given to the French colony of I-^a Salle ; and in Crozat's grant the word etnhlisscmens 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 settle^ merits [leurs etablissemens} to any post v/ithin the said boun- dary line, except within the precincts or jurisdiction o{ any o^ the said posts. All settlers and traders within the said posts [tous les colons et eommer^ans clablis dans I'enceinte et ]a 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, e^iecially when it i» 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 settlenrent, or etablissementt 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 difTerens 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, vol. 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 estiiblishments which are spoken of, and the word settlements is distinctively applied to them. 207 3 Florida d, is the and in mployed. the Ian- may be 4, by the (d States, ;ir settle- id boiin- of any of lid posts cinte ct y iinmo- >rotected onstrued >g of the en it is ar tern>, J-known is serves of trade ssementf cat Bri- now in, ich that del and ginning ies, vol. ntion of States, 3 in the ! vessels 1 hospi- domin- ay, and d Unit- princi- s latter hments ictively CHAPTER XVI. NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1826-27. Revival of Ncjroliations — Written Statements of respective Claims. — The United Stales. — Great Britain. — Rights supposed to be derived from the Acqtiisition of Louisiana. — Jcfferys' 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- tlcmcnts 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 i< t : t in P- ^ > 208 MR. GALLATIN 8 STATEMENT. I f < 5> 'f ■ ^ > IV '■ navigable ])y boats. The claims of the two nations were on this occasion formally sot forth in written statements, and annexed to the protocol of the sixth and seventh conferences rcsjjcctively. 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- lory, 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 diflferent 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 progress 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 were on nts, and ferences Adams's ire both sv's His. )ne was counter. Jcratuin, ection of e almost B collec. libraries I, for ex. I in vain both the ix to the otiations ns of the misiana, xtension and to as the '^eries of ct titles, T would Power, , might idjacent of the s of the ve been ry, and various brought shed a )ng the atitude, iny na- The British commissioners, Messrs. Iluskisson 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. Groat Britain claimed no exclusive, sovereignly over any portion of the territory. As for any exclusive Spanish title, that was detinitively 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 nt^ver extended across the Rocky Mountains westward, imless 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 ZLnexed the Illinois to it, and from that time, the province I r. Ji, i 1 A': i i 210 NKW FKANCr. ( lU '!! ? ^; ' . I, ,t .\ ^''^ :1- ,«. extended as far as the most northern limit of the French pos- sessions in North Americii, and thorol)y west of Canada or New France. The settlement of that northern limit still fur- ther strengthens the claim of the Lnited States to the territory west of the Rocky Mountains." The meaning of this passage is rather obscure, but it seems to imply, that by the annexation of the Illinois the province of Louisiana was 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 cast 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 tothe 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 western bank of the Mississippi to its source. Thus we find in Jef- ferys' History of the trench 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 Jefferys' 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- IND1\N RESERVES. 211 onch pos. anuda or t still fur. ! territory t it seems 'oviiico of lit of tho ut off the so coiise< the cor. \y assert. In tho tales ex- h Spain, the west ivvards to ssissippi) River St. e St. Je- 3, territo. tly or in- words of on both to the II. nite with ave been western id in Jef. •ublished ofLouis- , accord, [exico in ide, (the ' map in n 86° to d on the of New d South ; on the by New lois, but the pro. Tince of Louisiana the indefmite extent northward which Mr. Ciallatin su^^csts, for the Marquis do V audrouil, in cedinj^ tho province; of Canada to Sir .1. Aruhrrst, in 1700, according to his own letter, ( Nnnuul K ;z''^Je'', 1701, p. IGs,) expressly described Loiiisiana as r\ten(lini;oii the one side to the carry- ing place of tho Miamis, and ot) tho other to the head of tho river of tho Illinois. The Illinois country itself was a limited district, watered hy 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 bav».,,v •■'.■^:^, lested under any pretence whatever in the said places, in their occupation of cuttinff, loading, and carrying away logwood ; and for this purpose they may build without hindrance, and occupy without inlcrruplion, 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 usutiuctuary right, or, according to the language of the Civil Law, Jus utendi, fruendi, suhk 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 a»*ticle, it was agreed between the two contracting parties, that " their respective subjects shall not be disturbed or molesied 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 'he claim of territo- rial right or sovereignty : and that pretext Deing 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 subjects 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 pro 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- a ■ ■:IJ^ .*.! CONVETtTION OF 1827. «,in their loj^wood ; incc, and lecessary bese arti- owers on ed." Majesty iccording idi, salvS. ail of the ty of the a>*ticle, it It " their ed either e Pacific coasts of urpose of country, •etext for »f territo- nally re- of terri- r to the ^ain, the te settle- •e was a then the (for the ot be the le domi* leir cha- sdiction. le north- ^'er, was on over dents in where- idmitted jurisdic- ish sub' II i jects settling in the places not already occupied on the north- west coast of America could not thereby bo 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 l)rought 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. . ^.;t- 22G NATIONALITY OP A HERCHANT SHIP. not been enforced in practice, clashing claims to newly-dis- covered territory, and perpetual strife among the nations, would have been the inevitable result." It may be as v ell 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 commissioned for the express purpose of making discoveries ; besides, beyond all doubt, this discovery was made by Gray ; and to what nation could the benefit of it belong, unless it be to the United States ? Certainly not to Great Britain ; and if to Spain, the United States are now her representative. 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 the nation." In both these statements it seems to be admitted, that there is a t-^chnical 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 r \ "i rRACTICE OP NATIONS. 227 newly-dis- e nations, laracter of y warrant , to which nbia River er the flag It the Co- ly observ- s (Gray's) lim on the every was so passed her hand, ti plenipo- ted States J and not lis distinc> mark, that her mast- tection, in noned for !s, beyond 1 to what he United Spain, the ' That the >vernment f she was in the full Dre at her protection its of the that there ublic ship • the pur- nand of a I national ce in the 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 jjorts, 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 terra'.. 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 win 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 board 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 protection 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 v'thin 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 ' •> '. I' ' 'I i i '•V •»•( 1 228 DR. CHANNING ON THE FLAG. I \' t Is I' ' i|i m 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 : wiiilst 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 m ' \ I ■ J Pit' I' 1 1: !1- < # i 11^ 232 THE NORTHERN BRANCH OP THE COLUMBIA. head-springs to the Pacifc, passing the winter of 1806 and 1806 on its northern shore, near the ocean." These statements however do not corrcsj)ond with the facts themselves which they profess to represent. Mr. Rush, in the negotiations of 1824, had set up for the United States an exclusive claim to the whole territory be- tween 42° and 51" 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 mis-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 Lev.is' 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 Clarke's River, it is not borne out by the account which Lewis and Clarke them- selves give. On Friday, Sept. 0, Captain Clarke and his party reached the first river on the western side of the Rocky Mountains, to which they gave the name of Clarke'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 V surrosKD to he the tacoutciie-ti:sse. 233 1806 and itatcments ves which Lip for the rritory bc- had been the River to a point obscurity 1 territory nt, excuse as already the source f Clarke's volves an ch, under y put for- prcsumed een circu- iblished in Waterloo- ig Lev; is' cularly as the great B been in- ich, being fish, and skooskee. the press, loun, that 1 with the liver^ it is rke them- i and his le Rocky e'* River, lid which, ) suppose, the Medi- the west- ist not be Vlexander Mackenzie in 1798, was siip|>ose(l to be the northernmost branch of thv Cohimhia down to so late a period as 1812. Thus Alexander von Iluinboldt, in his New Spain, (1. i., c. '2,) writes : — " Sous Ics 54^ ;J7' do latitude borcale, dans lo paral- lele de Tile do la Reino Charlotte, Ics sources (l<: la rlviirc A Mr H .1 11 ■i '■ ^ a 236 jMH. henry 8 TRADIWO POST. '!,■■'■ ■■.;.? I « : in the sprin;^ of 1811, they made their first cstabHshmenf 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- ncgan with the north branch of the Columbia, about 6U0 miles above its mouth, and the other on the Spokan, a strean> 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 LcM'is 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 inimediatelv 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 IVlr. 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 Ir"ing, 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 NOT A NATIONAL SETTLEMENT. 237 hment on it George, Thomson, pany, and ly to forc- ith of the ect, 'J^hc cstablish- f the Oka. about 600 , a strcan> e." Ilusion to ipposed to iie of the ich of the «a. This ice of the riing sup- be rather station as daring its liver with lluding at ith, in the ) have at- the south outh, and Such an Lcter of a eved that itizens of ouutains, se to the by them. Pacific nation of irth, and Bs. The ig to Mr. 3)f, three ^e citizen two more citizens of the United States were subsequently adniitttd, so that the majority of the company were liritish subjects, and they had received an e.\|)ress assurance from Mr. Jackson, the British Minister at Washin^jiou, that " in rase of a war between the two nations, tht-y would be respected as lirilish suhjcvh: and mcrchantsy^ [(iree'uhow, j). 295.] Mr. Astor stipulated to retain half the shares for himself, and in rc'tiirn to bear all the losses for the first five years, duririjj wliicli period the parties had full power to abandon and dissolve the asssociation. A detachment of the partners arrived at the Columbia River in IHll, and formed a tradinj^ establishment on the southern bank of the river, on Point Gef)rge, not far from the mouth, which they named Astoria. Mr. VV'asbin^r- ton Irving, who had bis information from Mr. Astor himself, terms their establishment "a trading house," [Ch.ip. i.\.] Not long after their arrival they received information from (ho 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 Okanogan 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 be contended that the settlement at Astoria had a definite national character, 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 utile,) 11* k' 23S Tin: NOKTII UKST CUMI'AXY, I « f I*!-''''!-' i\ I " ■•.'I' m l)iit llint tlicy shouM set up a litlo to tho sovf^rcignty (dojni- liiim (Miiiiicns.) or In- Ik Id to convoy a title to any state which should (diodse lo assert it through th(;iM, is not cont'or nahl-! to the practice of nations. IJut the plenipotentiaries of tho Uniti'd States contend that they I ave an exclusive; title to .ho entire valley of the Coluinhia, hy virtue of tliis settlement, ypain, ho\v( ver, did nf)t admit this tith^ in the n.'ijotiations prle region einsfatedj ig of the eing con* ons. Ho id, during ith Great [;hts, pro- joint 00- irritorv is unsound ssess the the tcrri- ; the Bri- assumed does not Astoria, ity stijnt' ossession (ichanan rh. But iqmnt in }d States r as the i. is con- t of pos- .storia is to prove id right, le other •n, — she ual pos- rsclf, so r. The ory was ! should le title. The question, however, between the two governments was not one of law, but o[ fact. Issue had been joined in the pre- vious letters between the Secretary of State and the Minisster 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 jm? helli^ 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 eifcct of the fact asserted bv 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 ^Mre 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 vl 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- ptradded title derived from Spain extends our exclusive rights over the whole territory in dispute against Great Britain." »"/■ 242 MR. BUCHANAN S ASSERTIOX. ^^>Jvtv ill .'rt' III If*' -'*:■ *^;i| rtl III' ' ■ill Such is the outline of the grounds on which the United States sot up an exckisive title to the entire valley of the Co- lumhia. 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 mtide 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 bo abstractedly true, yet on this occasion it does not apply. First of all, oecause 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 jthe 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- \ •■:>'■■ .ipl i i ^HTrV'" ■%* . MR. CALHOUN S ADMISSION. 243 le United of the Co- in makinjj lis title is 19, under )ain to the itly of its construc- coiild not onvention a dispute [a Sound, in public can never id." ! the deri- defects in stress had uction of vords the lemselves t m.ide to [be found Jut when Britain ," though ;casion it n recog- north- Br at the h a right econdly, ritain to thereby ents ; in corners of other he time ^ht than s never ged, nor lusive ti- le )) tie to the valley of the Columbia before the Treaty of Florida, or in other words, as assorted in lS-i4, to the entire territory between 51° and 42°, and that title existed independently of its provisions, it is ditticult 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 ('to Columbia to the Multnomah or Willamette River, and tinally 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 b;j effective. Lot it be kc|>t in mind that Great Britain has never claimed the exclusive privilege of settling on the north-west coast of Amcricp. tofhc north of the parts occupied by Spain, but she maintains her right not to be excluded from any places not already occupied. The United tes, on the other hand, are not satisfied with claiming a •r: : to make settlements, but they assert a rifjfht to exclude icat 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 i)atent to the civilised world. This very act, however, Mr. Calhoun admits to be defective for the purpose of 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 suliject of considera- tion — have been much strengthened by giving us the i/tcon^e*/- ahle 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 ■-jf 244 IMPERFECT TITLE OF SPAIN. .. K"..' It ' I <'■'. the original title of the United States, resolves itself into a title founded upon the first exploration of the entrance of tho 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 exclude all other nations from every part of the entire valley of the Columbia. On the contrary, the assertion of such a right 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 thedis* covery of the Columbia River, for the purpose of establishing 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 strengthened 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 Ay, 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 Spain, 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 effects 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- k ■, a; XR. Buchanan's statement. 245 self into a mce of the ition of its Lich a title, T the prac- ler nations tnbia. On sthor at va- itle by dis- hat thedis* stablishing Yy they set comity of 3 that they liscovery. le Florida rcngthened ! discovery the United r a perfect )eness does I States to [engthened ritain, be- ly title in but after )ns of the Id thence- it of mak- le original ve title by le against lin, which ided with ns which Conven- arry with Convfn- n the two July 12, ) does not cting par- 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 treaiy-priviJeges." 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 treaty-privilege in the latter sentence, when 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 Britisli commis- sioners have throughout maintained ; namely, that the third article did not contain a grant, 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, but scattered settlements, intermingled with each o*her, over the whole sur- face of the territory, for the single purpose of trading with the Indians, to all of which the subjects of each Power should have free access, the right of exclusive dominion remaining suspended. Surely, it cannot be successfully contended that such a treaty is 'an admission of certain principles of 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- ^ ^i .1, '!■ : ' '. n J \l 348 TEnUlTOiilAL BIGHTS. < .ii:i:i cd for any purpose but that of a mere temporary arrangement bot\vi;cii iGrreat Britain and Hpain. The law of nations rocog- nisos 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 will survive the shock of war." Almost all the topics in the above j)assagc 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 ; ?o that a detailed examination of them on this occasion will not be re- quisite. The lirst 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 178*J, 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 iuture, 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 181.5, such a view is quite incapable of being satisfactorily established : on the contrary, it is by implication refuted by the very stipulations in the tifth article, for free access and unmolested trade with tb^se very settlements. Again, the character of the provision;" ^ the convention is alleged to evince the intention of its mg a mere temporary arrange- ment. Such, however, w o not the opinion of Mr. I'ox, in respect to the sixth article when he charged the British Min- '•ii.'ii m w DKBATES ty THE BRITISH rARLIA3IE\T. 247 mgcment IS rvCOrr- erritorv, ini|)otcn- ains ' an '' which been al- loy we 10 : United ?o that a ot be re- acknow- )r it was hich the (If about restored y, when t of his stablish- :;laration such es- kould be ka, can- part of n Great d to the d States ly, that las been uaoje of n three )ns, and rcaty of idon in ictorily uted bv ess and ain, the e^red to rrangc- )x, in ^h Min- ister with having renounced the previous rights of Great I»rit- ftiii io plant colonies in the unoccupied parts of Soutii America ; nor of Mr. Stanley, in reference to the third article, when ho said, " Ttie southern fisheries will now be prosecuted in peace and security :" nor of the Duke of Montrose, when he said, y > 7 7 " 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 th* i )wn," (Hansard's Parliamentary History, vol. xxviii., p. OVO ;) 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 debater 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 now 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 ■c: !•'■.. *| . I'il'i' '}.^i: ■' , * 248 MR. fitt's declaration. reference to acknowledged authorities on international law, so that Mr. Buchanan's cntir'^ 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 wor''-- 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 importe* of the question, and to be at the same time more consisient with the respect due to the distinguished negotiators. l^ i&j ional law, fiave been ipondence it deserve cceed the y already ibund im- r bounds, id, of ap- e subject, rguments 1 the other I with the ire of the ie adopted rtP' of consistent 3. 249 CHAPTER XVIII. REVIEW OF THE GENERAL QUESTION'. Prcflumption 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 1824, that the United States had not a pcrfcci Right. — Cession of Astoria. — Course of tho Negotiations — Messrs. Rush and Gallatin in 1818. — Mr. Rush in 1824. — Mr. Gallatin in 1826.— -Negotiations of 1844-5. — Mr. Buchanan's Offer — Mr. President Polk's Message to Congress. — Conseqaences 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 jdanks 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, 1844. — Suggestion as to a fur- ther Proposal on the Part of Great Britain. — Mr. Webster'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 establishes at once a conclusive inference in favour of the common title of Great Britain. The proof required in the two cases is essentially distinct. Where two nations arc 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 prima 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 necessity of some common standard, ■r- ■• ■ ,'Pt ■■'■'♦• \i/ $ \> :; *■■ '^'^, r. ■: ifr,-. ■r.'i 230 PRESUMPTION OP A COMMON RIGHT. constitutes a valid proscription, such as was rccojrnised in tho rnso of Russia by the United Slates ii 1824, and by Great Britain in Ib'^o ; thirdly, in the partition havinjif been tho subject of repeated nejrotiations, and more especially from the proposals to negotiate both in lt'24 and 1826 having origi- nated with the United States, which thereby admitted tho claims of Great Britain to be similar in kind with their own, though they might maintain them to be difTerent in decree. It seems to have been contended by the commissioners of tho 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 superaddition 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 ,vith the continuance of the common right of Great Britain, which she claims by virtue of a title antecedent to such possession. But if tiie superadded Spanish title con- ferred an extension of exclusive rights on the United States, it must have been pi'ojyrio rigore 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 -annot bo two exclusive titles in difTerent nations to the same country, and Great Britain would be expressly debarred by the provisions of the Convcn- tion of the Escurial from recognising an exclusive title in tho United States, antecedent to their acquisition of the Spanish title by tho Treaty of Florida, ber-^use she had recognised in 1790 the right of Spain, in common with herself, to settle in any places of the north-west coast of America not as yet occupied : whilst she could not recognise the lights 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 apknow- ledged the common title of Spain before the time when the United States assert their own exclusive title to have com- CONVENTION OF 1819. 251 ised in tho I by Great ; been tlio y from the ving orifri- initted tho their own, 1 degree. ssioners of ation, that lem exclu- lon of Ihc inst Great 5.) The (ritain was s, whereas [id for con- t of Great ^cedent to I title con- ted States, and if so, t, on that could not isive titles at Britain c Convcn- itlo in tho e Spanish ognised in ) settle in not as yet hts which as exclu- that the e party in d in con- ns, which Itates and that time aqknow- when the mve com- menced ; and she had acknowledged the common title of tho United States, pending the continuance of the recognised title of Spain : so that she is precluded from recof^fnising the title of either slate 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 pro- eluded 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 ♦he third article, " that any country that may be claimed by ei ler party on the north-west coast of America, westward of the Slonv 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- diee of any claim which either of the two contracting parties may have to any part of the said country, nor shall it be taken to affect tlie 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 difler- 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 ir.pair, 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 ■H 'I* ;'J 253 n ! ll ! il 1 ^iJii Ctliii: i..'.,i,V' t STATUS ANTE DELLt'M. these words, " Wc have the honour to transmit a convention, which wo 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 oftlio 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 Castlcrcagh'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 ^'wre bellii and Great Britain had covenanted by the first article of the Treaty of Ghent to restore r;ll her acquisitions made^'wre belli. 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 consenting 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 lOlRSK OF THE NKaOTIATlOXS. aria convention, Rnipotcntia- We did not r» that coun- ntains,) but st Britain." the United ipccting the two parties n a subject 3ns, limited ;ht in com* ssenting to ting of the as recorded Britain to States had lession Jure it article of made ^Mre ained that : Company )f the title, the former ! to make reat Brit- le respec- it the title ent would implied a ide of the e of Great ites relied h, in this onsenting e received her sub- entitled to lorth-west 3d nation, the con- >ting, it is for either party on the renewal of negotiations to set up an exclusive title : such a proceeding would he essontially (i<:^rrssivcin its character, and would Ik; 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 tiie course of the various nego- tiations. It having been expressly slated in 1818, by Messrs. Rush and Gallatin, that the United ^States did not a.ssrrf a jtrrfcct right to the country, Mr. Rush, in his letter to Mr, Alams, proceeds to state, that " when the plcripotentiarics o<' tho United Slates, on their part, stated, 'tha.' ihore was no n;ason why, if the two countries extended their claims westward, tho boundary limit of the 49th parallel of north latidide itouhl not be continurd to the Pacific Occan,^^ the Briiish cort- ■lission'" ', though they made no formal proposition for a boundary, i 'i- mated that the river itself was the most convenient that cc.ild be adopted, and that they would not agree to any : ir.t did not give them the harbour of the mouth of the rive r, // • common with the United States. The history of tho subsequent negotiations will show t mt 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 -ontrary 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 tho 42d to at least as far up as the 51st dt.'.r.o of north latitude.'* He further said, that " in the opinion v ' my government, the title of the United States to the whole of that coast, from lati- tude 42° to as far north as GC^, wps 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 handints where >reign State Itates would ►n the con- illamctte, )Osal of the that Great iments, and Hudson's jnts receive |o river, the free navigation of which is absolutely necessary for the trans- port of outfit". ..rd their returns; that she should be precluded, not merely TroM the harbour within the river, but from tho 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 boars a similar relation to the future destinies of Northern Orep;on, 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 sincere and anxious desire to cuJlivafe 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 whicli 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 th(; beaver ; nd 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 differences 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* ■sr '4 .4v 11 ,1' ■• ■1 » I t I m ■ i: i it I* m } 4:¥i: ;:•.,',■;:• m (-•«;>■ ■ '1 1 f;;l < 258 PKESENT CONDITION. recognised by Great Britain and Spain in respect to each other, in the Convention of the EscurinI, were recognised once and for all. The United States now stands in the place of Spain ; she assorts that by tne 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 {Vcc 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 wouhl carry with them the independent rights, which the law of nations 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 Wachbourne's case (4 John's C. R. 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 outrngcs might bo 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 nggravate." 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 few square miles, more or less, where the entire territory to be shared between the two nations extends over a district of more than 600,000 square miles, can form but a secondary element of consideration in the question. If we look to tlie original rights of the United Slates, 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, hv settlors from other countries besides the United ^ tdljilitii ^ili pect to each B recognised lands in the f Florida she sr hands arc the Convcn- css and un- other, made ;r party : in ith them the ecurcs to the ould thus ho rreat Britain, ition to each of Switzer- e decided in I other cases, lich provided der and for- tions, and is e sanction of ity, as it was ajes might bo j leave open, ire disagree- ate." It is, a line of de- le conflict of , where the ions extends es, can form juestion. If 3, as founded the southern lilar manner, irst explored els of Great ' the United ho southern isively been Willamette to Captain the United BRITISH VOYAOES. ii59 States, the agricultural establishments on the Cowlitz River, and on the shores of Puget's Sound, in Northern Oregon, are exclusively the creation of British suhjects. 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 Elizaheth 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 sovcreifrn, 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 wrilten 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 reasonible 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 puhlished his account of the high prices which had been obtained bv his '.i» I d I* I ■ 260 SETTLEMENTS IN THE COUNTRY. F'l M sailors for tlio furs of the north-west coast of America in the markets of China, the American fur-trader, as Mr. Greenhovv terms Captain GraVi 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 tiie 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°, wafe "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 acknowledge d 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 22lI 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 R\,Ui OF PARTITION. uai > sources of Lewis River, where Fort Hall, the most southern settlement of the Hudson's Bay Company, supplies shtllcT 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, oa the testimony of their own countrymen, had no settlements of a permanent kind west of the Rocky Mountains. Even in the valley of the Willamette, where Captain Wilkes, in 184(', 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 riot 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. XHI.) 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 •n %( it.";-'' i H] '!5 ■k ? , 'n 13 i.- '! 1., , ' * ■sb j ' A^ • f -'- »id^3 'i .'Vifl ^ <'»jwn 262 llliJJSIAN rossKssioxs. the title of Great Britain rccojjniscd in the Convention of the Escuriul, with the title of the United 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 north-west coast already occupied by Spain, at the signature of tlie 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 Frazcr on the northern, and nature seems to have accorded the embouchure of the Columbia River, in the latitude of 46'^ 18', to me;;t the conditions of so reasonable a rule, as that which the United PROPOSALS OF GREAT BRITAIN. 263 States ihen 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 TJnited 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- ^'i ii.' it:' K 264 FUTURE DKSTINIES OF OREGON. 1 I 'It «; I. 1.,- ■ • . L, .1 ■, ' ■ • V ' i' 1. ■■■: ■ '< i; ; , ';hI tory, but by considcralions of utility, not to say necessity, which cannot bo lost sight of, and for which allowance ought to be made, in an anangcnient professing to be based on con- siderations of mutual convenience and advantage." Great Britain has advanced in her oilers 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 the 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 w-ould 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 bo regarded as hopeless. It will then be best lor 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 184.3, that "the distance for a fleet to sail from New York to the 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. T n E K N D . INDEX. Adaius, .1. Qiiincv, ncp;otiatcs the 1 lorida 'I'riaty, "l<'9. Ai;iiilar, Martin d', 5.'?, OS. AlaiTdn, Ft-rnaudo, 73. Alliidii, Now, l^>. Aiiahnac, platt-au of, 14. -AiidiTson on CoinnuTtM', US, 15S. Anian, Straits of, said to he discover- ed by Cortereul, in lotXt. IS. Ar";onaiit, llic, seized at >iootka, 81. Arkansas River, H.'O, 170. Astor, John Jacob, '£\, 2-m. Astoria, established in 1S11,24 Trans- ferred l)y purcliase to North-west Company in l«i:3, 25, 192, 2:W. Sur- rendered to the United States, 2159, 252 Suh niodo, 241. Not a nation- al settlement, 'i}7. Atlantic Colonics, 213. Barclay, Captain, first descries the Straits of Fuca, 19, 62. Bchrinf!;^ Voyasre, 54. | Bel>hain's History of England, 92. Bernard, St., Bay of, 155. | Biographie Universelle, < rror as to Drake, ',H), 3(>. As to (iali, 54. Bod«>ra, Port de la, 42, 5S. Bodega y Quadra, 5b'. Bracton de J>( cibus, 113. Brou/^hton, Lieut , explores the Cf)- luml)ia, 104. Takes possession of the c< uni rv. !05. Br.ltinch's ilirbour, 254. Bynker.-J), by F. de UUo.-, 26. A penin- sula, 54. Jesuit missions, 54. A cluster of i.-lands, 74. Spanish pos- sessions, l. 178, 241. Of 1803, not ratified, 251. Of lfeC6, ditto, 147. Conventior.s, transitory, 129. Mixed, 133. ■ -J (1 'I I m < ( * ) f;.? ' u INDEX. Cook, Captain, inNtnirtioiis to, 15, 58. Di.icnvery of Nootka, 110. Coroiiiulo, Vas(|iiez (li\ I5H. C'orlereal, (Jaspar do, IS. Crozat's grant ol Louisiana, Lj5. Davis, John, the navij^ator, 44. DesciihijTla and Atrcvida, voyage of the, iHi. Discovery, title hy, 110. Not in the Konian law, if.j. Condirion'* of, 121. Progressive, 122. Kecpiires N(»tifii'ation, 2(X) An inchoate act of sovereignty, 23(). Dixon and Porilock, 01, 70. Domain, eminent, 111. I'sefi 1, 111. Drake, Sir(l., his voyage, 27. French account, ;J0. Knighte(l br Queen Elizabeth, 13.9. Limits of voyage, 40. His discovery maintained Dy l*ritish ne>>«itiators, lS(i. Dutlot de Mofras, 93, 100. Duncan and Colnctt, 02. Elizabeth, Queen, reply toMendoza, ll:i Speech of, 45, ioi). Escarbot's Histoire de la Nouvelle France, 107. Escurial, Convention of the, 80, 201, 244 Mr. Greenhow's view, 90. British rights under, ascertained, 202. Eyries, M., error as to Drake, 35. Gali, 52. Factories, or comptoirs, 200. Falconer's treatise on the Mississippi, 155. Family Compact, 80. Felice and Iphigenia, 77. Ferrelo, Bartholeme, 27. Flag, on the. Dr. Chaning, 228. Mr. Gallatin, 230. Fletcher, World Encompassed, 28, 35. Manuscript notes, 38. Fleurieu, 30, 47. Florida Treaty. See Washington. Fonte, Bartholeme, 70, 171. Francisco, Port San, the northern- Miost possession of Spain, 42, 200. Frazer's Kiver, 20. Frazer's Lake, 21. Fort, 201, 202. Fuca, Juan de. Straits of, 19. Dis- covery claimed by Martinez, 50. Discovered by Barclay, 02. Story of, 00. Not mentioned in Spanish archives, 09. Spanish claim, 171. Fur Company, American, 23. Mis- souri, 23. Pacific, 23. Fur trade, 18. Gali, Franci.Hco, 50, 54. Gaiiano and Valdt's, 19. Sec Suti) and .Mexiruno. Gallatin, Mr , hi\, 210 Declaration of Fruiicv in I7()i. 212 Cession of, 147. Western bounda- ries, l&S Sold to the United States, 157. Extent of, 210, 212. Mackenzie, Alexander, first crosses the Rocky Mountains, l\). Maldonado, pretended voyage, 65. The author a Fleming, (w. Maps, of Ortelius and lloiidius, 45, 74 Of the 16th and 17th cen- tury, 74. DifKculty from incorrect, 160. 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, HO. Matagorda Bay, 155. Mcares, 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. Company, 156. Discovered by Hernando de Soto, 153. Discover- ed bv Spain, 153, 197. Explored by British subjects, 154. Free navigation of, ]9o. Missouri Fur Company, first estab- lishment of citizens of United States on the west of the Rocky Mountains, 23. Monroe, President, declaration of, 178. Monson's, Sir W., Naval Tracts, 44. Mountains, Snowy, 165. Multnomah River, 166. Incorrectly laid down, IW). Proposed as a boundary by Spain, in 1819, 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 sTiip, Mr. Uu.sh's view, 18^1 Mr. Buchanan')" view, 226. Negotiations in 1818, 144. New France, extent westwardly, 161, 210. New Mexico, extent of, 171. Nootka Sound, 73. Discovery of, 1 16, British colours hoisted at, *9. De- livered up t(» the Uritish, 92. Con- troversy, 119. British settlement, 203. Nootka Sound Convention. See E»- ciirial. Mr. Pitt's view, 247. North-west Company established, 20. Their first settlement west of thu Kocky Mountains, 20. Uecupation, title by. 111. Distinct from occupancy, 114. Ohio River, 159. Okanegaii River, 24. Onis, Dun Louis de, 16-1. Oregon, or Oregaii 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. Di-ssolu- tioii of, 25, 192. 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, 2.55. Pretty, Francis, 28. >ot the author of the Famous Voyage, 32. Purchas, Pilgrims ol, 34. Racoon, sloop of war, 25, 239, Rio Bravo del Norte, 171. Rivers, appendages to territory, 173, 195. Common use of, 126, 176, 195. Mr. Wheatou on, 195. Rocky Mountains, 14. Rolls Court, 131. 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, 122. Jurisdictiou H. .. r iv INDEX. let of, 172. ConterminoHs, 175. Not mere tratlinp^ stations, 2()2. Not (aotorios, 2(Hj. Tiiteiinixeil, 21-3. Priority of, 221. Sitrra Verde, 13, WG. Silva, iXiirio (la, Jiis narrative, 28. Sclioell's 'J'laites, !)(), ft2, 147. fcioto, Heniaiulo de, discovered the Mississipj)i, 171. Soutii ('iU(>iiiia, laws of, 227. Spain, fla.ms to the north-west coast of Ami rica, 1(H. f^fow, llie Annalist, 43. Stowell, Lord, on rivers, 106. On discoveries, 121, 200. Sutil y Mcxicuna, voyage of, 48. Tacoutche - Te.sse River, held by I..ewis and Clarke to be the Colum- bia. IM, 232. Teliiricoif's voyage, 54. Tf-rritory in use, 221. ■^I'L-xa^. lioniidarics of, 171. Thalwe-, 17ti 'I'hof.isiin, Mr. David, the astronomer tif tlie Norlh-west Compar.y, de- scends the north branch of the Co- lumbia River, 21, 24, 171, 2;«. Determines the latitude of the sources of the Alississippi, 146. Tiji[iina;, Captain, b'l, 70. litle by Occupation, 111. Discovery, 115. Sea coast, 172 Settlement, 124. Prescrii)tion, 124. Convention, 12f). Tonquin, ship, destroyed by the In- dians, 24. treaty of Utrecht, 84, 144, 148. Paris, of 1803, 147. Paris, of 1763, 149. Ryswick, 157. Washington, 173. S. Ildefonso, 157, 162. The Escurial, 8(>. 201. Ghent, 141. Family Com- pact, 86, 92. Paris, of 1783, 12ii, 1 !(), ir>l. 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 J'resident's plan as to the Pacific Ocean, 169. Use, innocent, 128. U-.ucaption, title by, 124. Utrecht, Treaty "of, 211. Commis- sioners under, 148. Vancouver, Capt., 18. Instructions, 98 Names C. Orford, 9:*. Ob- serves lleceta's River, 100. Vin- dicated against Mr. Clreenhow's charges, 103, 107. Vattel on Occupation, 173. On Dis- cover}-. 193. On Prcscriptif)P, 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, 237. Wheaton on Discovery, IIS. Wilkes', Capt., expedition, 74. Willamette, settlement on the, 236, 259. Webster, Daniel, 264. WoUHi Jus Gentium, 112. Institu' tionsdu Droit, 113, 121. Woods, Lake of the, 145, I ; I t\,. \ he Escuria!, ^amily Com- if 1783, 133, war, 135. icknowledg- ip; the north- 4,72. cnt's plan as ii). Commit list ructions, I, 9<. ()!)- JOO. Vin- jreenhow's 5. On Dis- •iptiop, 125. n-, 126. he, ViG. ?sinn under, (ish conces- S. L74. 1 the, 256, 2. Institu' \, A CATALOGUE OF BOOKS, IN VARIOUS DEPARTMENTS OF LITERATURE. PUBLISHED BY D. APPLETON &£ Co., New-York, Ain) GEO. S. 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Kingsley's Sacred Choir. Lyra Apostolica. Magce on Atonement. Manning on Unity of the Clmrch. Marshall's Notes on Episcopacy. More's Private Devotion. " Practical Piety. Maurice's Kingdom of Christ, Newman's Parochial Seimons. " Sermons on S)' /jectaof the D^ Ogilby on Lay-Baptism, " Lectures on tho Church. Palmer on the Ciiurch. Paget's Tales of tlie Village. Pearson on the Creed. Philip's Devotional Guides. " The Hannahs. " Tho Marys. '« The Marthas. " Th.) Lydias. •' Love of the Spirit. Sherlock's Practical Christian. Smith on Scripture and Geology, Spencer's Cliristian Instructed. Spincke's Manual of Devotion. Sprague's Lectures to Young People " True and False Relig'on. Sutton's Learn to Live. ' Learn to Die. " On Sacrament. Stuart's Letters to Godchild Taylor on Episcopacy. " Golden Grove. " f^piritual Christianity Wayland's Human Responsibility Wil.ion's Sacra Privata. Wilborforce's Communicant's Manual. VOYAGES AND TRAVELS, Cooley's American in Egypt. Olmsted's Whaling Voyage. Sillimtin's Ameiican Scenery Southgato's Turkey and Persia. ^ P ai E a C E f ftonj. ous. Christ. omilici. sing. ition. XXIX. ArtiCiCs. ins. )haiii and Glaibunt Jhurch. ,T. lea. lead an. 1 Homo. ior. r after Suh'ation. ature and SnurcM CliHrch. copacy. rist. lona. .jectiofthe Dtf liurch. igo. tian. ology. cted. itiiin. lie Peopls Religion. Id ity sibihty It's Manual. TRAVELS, n. 9. iriia. Appleton's Catalogue of Valuable Publications. A KEMPIS— OF THE IMITATION OF CHRIST: Four books by Thomas <\ Kempis. One elegant volume, IGmo. $1 00. " Thf! author of this invaluable work was born about the yt-ar 1380, and hna always bean honoured by the Church for ills eminent sanctity. Of the many pious woriis composed by him, nia ' Imitation of Christ' (being collections of his devotional thoughts and meditations on impor* tant practical suhjefts, toijether 'vith a separate treatise on the Holy Communion) is the most celebrated, and has ever been admired ana vaiued oy devout Christians of eveiy namo. It has passed through numerous editions and translations, the first of which into I'^nglish is said to have been made by the illustrious Lady Margaret, mother of King Henry VII. Messrs. Applo'.on's rery beautiful edition is a reprint from the last English, the translation of which was c: efly copied from one printed at London in 1677 It deserves to bo a companion of the goo^ Msho|r Wilson's Sacra Privata. — Banner of the Cross. AMERICAN POETS.— GEMS FROM AMERICAN POETS. One volume, 32mo., frontispiece, gilt leaves, 37 1-2 cents. Forming one of the series of " Miniature Classical Library." Contains selections from nearly one hundred writers, among which are — Bryant, Ilalleck, Longfellow, Percival, Whittier, Sprague, Brainerd, Dana, Willis, Pinkney, Allston, Ilillhouse, Mrs. Sigourney, L. M. David* son, Lucy Hooper, Mrs. Embury, Mrs. Hale, etc. etc ANTHON.-CATECHISMS ON THE HOIS/HLIES OF THE CHURCH, 18mo. paper cover, 6 1-4 cents, $4 per hundred CONTENTS. L Of the Misery of Mankind. IT. Of the Nativity of Christ. By HENRY ANTHON, D. D., Rector of St. Mark's Church, New York, in. IV. Of the Passion of Christ. Of the Resurrection of Christ. This little volume forms No. 2, of a series of " Tracts on Christian Doctrine and Piactieo," •ow in course of publication under the supervision of Rev. Dr. Anthon. AUSTIN.— FRAGMENTS FROM GERMAN PROSE WRITERS. Translated by Scirah Austin, with Biographical Sketches of the Auih One handsomely printed volume, 12mo. '/'■. 1 Vir ARTHUR.-TIRED OF HOUSE-KtLEP?\ By T. S. Arthur, author of " Insubordination " etc. etc. Ono volume, ISmo. frontispiece, 37 1-2 cents. Forming one of the series of" Tales for ;i;v 1 eople and Uieir Children." Contents. — I. Going to House-keeping. — JI. First Experiments. — III. Morning Calls. — IV. First Demonstrations. — V. Trouble witli Sorvants. — VI. A New One VII. More Tiouble.— VIII. A True Friend.— IX. Another Powerful Demonstration. — X. Breaking iqi. — XI. Experiments in Boarding and Taking Boarder. — XII. More Sacrifices.-— XIII. Extracting Good from Evil.— XIV. Failure of the First Experiments.— XV. The New Boarding- House. — XVI. Trouble in Earnest.— XVII. Sickness.-^XVIU. Another Change. — XIX. Conclusion. BEAVEN.-A HELP TO CATECHISING. for the use of Clergymen, Schools, and Private Families. Uy James Bea ven, D. D., Professor of Theology at King's College, Tore nto. Revised and adapted to the use of the Protestant Episcopal Church in the United States. By Henry Anthon, D. D., Rector of St. Mark's Church, N. Y. 18mo., paper cover, 6 1-4 cents, $4 per hundred. Penning No. 1 of a series of" Tracts on Christian Doctoine and Praetice." now in conn* «^ MMication under the luperintendence of Rer. Dr< Antb f M Aj/pkton's Catalogue of Valuable Publications. BIBLE EXPOSITOR. Confirination of the Triilli of the Holy Scriptures, frcnn tlie Observations of recent Travellers, illiistr;itiii<^ the Man)iers, Customs, and Places referred to in the Bihie. Puhlished uniler tlie direetion of the Society for the Promo tion of Cluistian Knowledge, London. Illustrated with 90 cuts. Onoir perusal "-—Christian Witntut, ons. Observationt ol laces referred to (T for the Promo 1 00 cuts. On'S DELIGHT; \. Gift for the Young. Edited by a lady. One volume small 4to. EmbtU lished with six steel Engravings coloured in the niost attractive style. This is the gem of the season. In style of embellishment and originality of matter, it ttonde ■liix*. 'W* cordially recoin;iien'', tlto volunio to our juvenile friends.— C. S, HentUe, 6 Appleton's Catalogue of Valuable Publications 11 ': i m CHURTON.— THE EARLY ENGLISH CHURCH; Or, Christian Ilialory of England in early British, Saxon, and Norman TinieM, By the Rev. Edward Cliurton, M. A With a Preface by the Right Rev Bishop Ives. Onevol.lGino. $1 00. Th« following dcliglitful pagns placo before us some of the choicest cxamp'os — both clerical and lay— of the true Cliristian spirit in the KAKLY ENCiLISlI CilL'RCII. In truth, those pogM m« crowded with weighty lessons. * * * Extract f rum Editor's Preface. CLARKE.— SCRIPTURE PROMISES Mnder tiieir proper heads, representing the Blessings Promised, the Duties to which Promises are made. By Samuel Clarke, D. D. Miniature size, 37 1-2 cents. In thie edition every passage of Scripture has been compared and vorifiod. The volume ii like an arranged museum of gems, and precious stones, and pearls of inestimable value. Th« divine promises comprehend a rich and endless vuiiety. — Dr tVardlau). COOLEY.-THE AMERICAN IN EGYPT. vVith Rambles through Arabia-Petrtea and the Holy Land, during tlie years 1839-40. By James Ewing Cooley. Illustried with numerous steel En gravings, also Etchings and Designs by Jol' inton. One handsome volume, octavo, of 610 pages. $2 00. No other volume extant gives the reader so true a picture of what ho would be likely to see Kad meet in Egypt, No other buok is more iiractital and plain in its picture of precisely what the traveller himself will meet. Other writers have one account to give of their journey on paper, Eki another to relate in conversation. Mr. Cuuley ims but one story for the fireside circle and the printed page. — Brotker Jonatlian. CHAVASSE.-ADVICE TO MOTHERS On the Maniigement of their <>ifspring, during the periods of Infancy, Child- iiood, and Youth, by Dr. Pye Henry Chavasse, Member of the Royal Col* lege c'' Surgeons, London, from the third English edition, one volume, 18mo. of 180 pages. Paper 25 cents, clotli 37 1-2. All that I liavo attempted is, to have written useful advice, in a clear style, stripped of all technicalities, which mothers of every station may understand. * * * I have adopted a con- versational form, uB being more familiar, and as au easier method of maJiing myself understuod.— ELtractfrom Author's Preface. COPLEY.— EARLY FRIENDSHIPS, By Mrs. Copley. With a frontispiece. One volume, 18mo. 37-12 cents. A continual' yn of the little library of (. nular works for " the People and their Children." Its design is, by ^jivingtho boarding-scliool In. i' HPund sense, honest principles, and inlolligeiii industry, not only advanf-v ll.cir possessor, but, cs in the case of Uncle Benjamin the gardener, enable him to become the bcnefuTlor, piido, and friend of relations cast down from a loftier sphere in life, and, but for him, withoui lesource. It is a tale for youth of all classes, that cannot be reod without profit. — JV*. Y. Aintrwan. CORTES.— THE ADVENTURES OF llernan Cortes, the Conqueror of Mexico, by the author of *' Uncle Philip'i Conversations," with u Portrait. One volume, 18mo. 37 1-2 cents. ^^orming one jfthe series of " A Library for my Young Count/ymen.* Tno story is full of interest, and is told in a captivating stylo. Such books add all the charnns ef romance to the value of history. — Prov. Journal. COTTON.— ELIZABETH i OR, THE EXILES OF SIBERIA. By Madame Cotton. Miniature size, 31 1-4 cents. Forming one ot'the series of "Miniature Classical Library." The extensive popularity of this Uttlo tale is well known. tions H; I Norman Tiniea Y the Right Rev imp'es— both clerical In trutli, thoae pagM ed, the Duties to Miniature size, Hod. The volume ii itimable value. Tlt« Juring the years nerous steel En indsome volume, )uld he liknly to see iro of precisely what eir journey on paper, lie hrcsido circle and Infancy, Child- f the Royal CoL an, one volume. style, stripped of all have udopted a con- nysolf nnderstood.- 37-12 cents. leir Children." Iti education had been nciplcs in moulding eet the temptation* ithor of «' Early cents. eg, and intelligent amin the gardener, rum a loftier spher* ises, that cannot ha Uncle Philip'i 2 cents, .•ymen.' add all the charmt SIBERIA. **''. Appietoii's CataloiTue of Valuable Publications. COWPER.-THE COMPLETE POETICAL WORKS Of William Cowper, Es(|., including the Hymns and Transhition.s from Mad Guion, Milton, &lv.., and Adam, a .Sacri'd Drama, from the Italian of Bat* tista Andreini, with a Memoir of the Author, hy the Rev. Henry Stebbing, A. M. One volume, IGmo., HOO pages, $1 50, or in 2 vols. $1 75. Forming one of the Series of "Cabinet Edition of Standard British Poets." Morality never found in gnnius a nioro devoted ndvocato than Cowper, nor has nioriil wiiiilnra. (r its plain undspviTo prijoeptn, letlerB from Imminent Pliysicians and others, descriptive of cases in the U. States. One volume, 12m'o. $1 00. The translator of this work has certainly presented the piofession with an uncommonly wel* di^vted treatise, c.,.'ianced in value by his own notes and the corroborative testimony of emiiMBt 9ii>rji«i(in«. — Boston Med 4* Surg. Journal. '^0>f!-- w 1 .,' y" ^'f. :• M Appletoii's Catalogue of Valuable Publications. ELLIS— THE DAUGHTERS OF ENGLAND; Tiieir position in Hociuty, Clinracter, and lied]>unsibilities. Bj Mrs. Ellis. In one iiandsoine volume, lUinio., cloth gilt. 50 cents. ELLIS— THE WOMEN OF ENGLAND; Tlieir Social Duties and Domestic Habits. By Mrs. Ellis. One handsome volume, lymc, cloth gilt. 50 cents. ELLIS.-THE WIVES OF ENGLAND; Their Itelative Duties, Domestio Influences, and Social Obligations. By Mrs. Ellis. One handsome volume, J^mo., cloth gilt. 5U cents. ELLIS.-THE MOTHERS OF ENGLAND; Their Influence and Responsibility. By Mrs. Ellis. One handsome volume, J2mo., cloth gilt. 50 cents. 'I'iiis is an nppropriiito nnd vnry viiluiible conclusion to tho HDrios of works on the aubjoct o( fcinali: iliiticsi, by wliich ^fr.■<. Kills has plnuEifil, and wo doubt not profited, tliouinnds of r^ndore. Her counsels dein;ind uttcntion. not only by tlioir practical, sagacious usofulnosg, but olso by tho mock and niodost spirit in which they arc communicated. — Watchman, ELLIS.-THE MINISTER'S FAMILY; Or Hints to those who would make Home happy, ume, 18mo. 37 1-2 cents. ELLIS -FIRST IMPRESSIONS; Or Hints to those who would make Home happy, ume, ]8«no. 37 1-2 cents. ELLIS.-DANGERS OF DINING OUT; Or Hints to those who would make Home happy, ume, jymo. 37 1-2 cents. By Mrs. Ellis. One vol* By M/s. Ellis. One vol By Mrs. Ellis. One vol ELLIS.— SOMERVILLE HALL; Or Hints to those who would make Home happy. By Mrs. Ellis. One vol- ume, ISmo. 37 1-2 cents. The ubove four volumoa form a portion of series of " Taleii for the People md their Children." " To wish prosperity to such books a3 these, is to desire tho moral and physical welfare of the human species." — Bath Chronicle. EVANS.-EVENINGS WITH THE CHRONICLERS; Oi" Uncle Rupert's Tales of Chivalry. By R. M. Evans. With seventeen illustrations. One volume, 16mo., elegantly bound, 75 cents. This would have been a volume af\er our own hearts, while we were younser, and it in icarcoly less so now when we ire somewhat older. It discourses of those things wliiLli iharmcd all of us in early youth — the daring deeds of the Knights and Squires of feudnl warfare — Iho true version of the " Chevy Chase," — the exploits of tho stout and stalwart Warriors of Englimit, Scotland, and Germany. In a word, it is an attractive book, and rendered more so to young read- ers by a series of wood engravings, beautifully executed. — Courier ^ Evqvirer, EVANS-THE HISTORY OF JOAN OF ARC. By R. M. Evans, author of " E'. enings with the Chroniclers, ' with t^venty- four elegant illustrations. One volume, IGnio. Extra gilt. 75 cents. In the work before us, we have not only a most interesting biography of this female prodigy, including what she was and what she accomplished, but also a faithful account of tho relations that exir'.ed between En^rland and Franco, and I'C tin' singular »t 'te of things that marked tho lieriod when this woiid; rt'ul persona^ro a|i|)earp(l ui)on the stage. Tho leading ineidonts of her iifo nre related with exq'iisite sim|)!icity and ti.uehiii:: patiios ; atul you rannol repress your admi- ration for her heroic qualities, or scarcely repress your tears in view of her ignominious end. To Uio youthful reader wc hcuttily recommit nd thi* velum'-. — Mbanij .ificertiter. H ^ tions. By Mri. Ellii. One handsome ;ation8. By Mrt ts. indsome volume, rkg on tlio sul)joct of housniuls of rcndore. noBB, but also by tho Ellis. One vol- Ellis. One vol Ellis. One vol Ellis. One vol- ind thoir Children." 'sical welfare of tb« ERS; With seventeen Its. younspr, and it in ings wliiLh ihariTicd 1 wiirfare — llio true nrriors of Engliini!, re BO to young read- ' whh t^venty- 75 cents. his fcinule prodigy, lilt of tho relations .'s that marked tho IS iiicidonts of hoi rcprdsfi your admi- oniinious end. To ;'. Appleton's Catalogue of Valuable Publications. EVANS— THE RECTORY OF VALEHEAD; Or, the llerords of a Holy Home. By the Rev. R. W. Evans. From th« tweinii English edition. One voliimti, IGino. 75 cents. UniverKnlly anil cordially do wn rocoininond this dolightful volume Wo boliovo no pcrio* Goulii read thin work, and nut ho tho bnttttr for its pious and toui^hin:; li-ssons. It in a pago takna .Voiii the bonk of lifu, ami cloipiiMit with all tho instruction of an nxcullont pattern ; it la a coin- mestary on tlio afloi'tiouato warning, " Ri'incinbcr thy Creator in tho days of thy youth." V\'« h^ve not for somo tiinu scon u work wo could so duacrvcdly praise, or so consciontiously roconi- tijiiiJ — Literary Qazcttr, EMBURY— NATURE'S GEMS; OR, AMERICAN FLOWERS (n their Native Haunts. By Emma C. Embury. With twenty plates oflMniitt rarefully colored after Nature, and landscape views of their localities, from dravviiig.-^itaken on the spot, by E. W. Wiiitefield. One imperial oc- tavo volume, printed on the finest paper, and elegantly bound. This boautiful work will undoubtedly form a ''Oirt-nook" for all sonsons of tho year. It i« illui ♦.rali.'d with twenty colored cngraviii;,'s of iiidigiMious Howors, taken from lirawings made on the spot where tiioy were found ; while eacli flower is acconipaniod by a view of sonic striking feature of .\merican scenery. Tiie literary plan of the book dill'ers entirely from that of any other work en u similar suliject which has yet appeared. Each plate has its botanical and local de- Bcription, though therhief part of tho volume is composed of original tales and poetry, illustrative of the senlimenfs of the flowers, or associated with tlio landscapi;. No pains or expense has boon spared in the nu rlianical execution of llio volume, and the f ict that it is purely American both in its graphic and literary departments, sliould recommend it to genera] notice. EWBANK— HYDRAULICS AND MECHANICS. A Descriptive tind Historical Account of Hydraulic and other Machines for raising VV^ater, including the iSteam and Fire Engines, ancient and tnodern ; witii Observations on various subjects connected with the Mechanic Arts ; including the Progressive Development of tiie Steam Engine. In five books. Illustrated by nearly three htuidred Engravings. By Thomas Ewbank. One handsome volume of six hundred pages. i|3 50. This is a highly valuable production, replete with novelty and interest, and adapted to gratify equally tho historian, the philoso|)hor, and tho nieclianician, being tlio result of a protracted and extensive research among the arcana of historical and sciiMuilic literature. — JV"'«^ Intelligencer, FABER— THE PRIMITIVE DOCTRINE OF ELECTION; Or, an Historical Inquiry into the Ideality and Causation of Scriptural Elec- tion, as received and maintained in tlie primitive Church of Christ. By George Stanley Faber, B. D., author of "Difficulties of Romanism,' "Difficulties of Infidelity," &c. Cotnpletein one volume, octavo. $1 75. Mr. Faber verifies liis opinion by demonstration. We cannot pay a higher rcspoct tohiawork than by recommending it to all. — Church of England Quarterly Review. FALKNER— THE FARMER'S MANUAL. A Practical Treatise on the Nature and Value of Manures, founded from Experiments on various Crops, with a brief Account of the most Recent Discoveries in Agricultural Chemistry. By F. Falkner and the Author of " British Husbandry." 12mo., paper cover 31 cents, cloth 50 cents. It is the object of tho present treatise to explain the nature and constitution of manures geno- rrtlly — to point out the moans of augmenting the quantity and preserving the fertilizing power of fiiriK-yard manure, tlio various sources of mineral and other artificial manures, and the cau^e of thiii frp([uent failuies. — Autlior^s Preface. FARMER'S TREASURE, THE ; Containing " Falkner's Farmer's Manual," ing," bound together. 12mo., 75 cents. FOSTER— ESSAYS ON CHRISTIAN MORALS, Experimental and Practical. <^)riginally delivered as Lectures at Broadmead Chapel, Bristol. By Johr. Foster, author of " Essays on Decision of Char- acter, etc. One volume, 18mo.,50 oents. Thia volume contains twenty-six Essayfi, somo uf which are of the highest order of lubUmitf aod evmlonce. an d " Smith's Productive Farm* Appletori's Catatogiie of Valuable PiiLU^atip^s. |i f ; 5; FOSTER.-BIOG., LIT., AND PHIL. ESSAYS, Cuntribiited to tlie Edertic Review, l)y Joliii roster, aiitliorof " Easays on D»« ciaion of Iliiinan Character," etc. One volume, I'Jino., $1 25. 'J'lirHc contrilxitioiiH woll dcservo to cliiss with tlioso of .Maciiuli'y, Joffrtiy, and Siilnoy flmith, in the l^iliiihur»h lluvinw. They coiituiii tlio itroihi'-tionH of u iiioru (iri;;inul iukI profound thinker than (Mthor, who.xij inusti'r-iiiiiid h.ifi uxurted u i|)(!r iinprui^sioii upon our litiT.ituru ; mid who!4(! pcculiiir iiioTit it / ^m to pr('H(Mit the doctrine! and iiioralitioH of the C'iiristiiin f.iith, under a form und UHpnct \\ hit li ri'ii<"Aiiisd thn fauiiliaf from trit(!ll(.•^<3, und throw a chiirni and frusiineBS uhout the guvoront triilhs, — L^iulon Patriot. FROST.-THE BOOK OF THE NAVY: CoiiiprisiniT a (Jeneral History of the American Marine, and particular account! ot all the most celebrated Nava. Battles, from the Declaration of Independ ence to the present time, compiled from the best authorities. By John Frost, LL. D. With an Appendix, containing Naval Songs, Anecdotes, &.V,. Kmbeliislied with numerous original Engravings, and Portraits of distinguished Naval Commanders. One volume, 12mo., |^1 00. This is tim only popular find yet authentic singln view which wo liiivo of the nnval exploits ot our country, arranfji-d with good taste and sot forth in fjood IiiiKuago — U. S. (hnette. This volume is dedicated to the Secretary of the Navy, and is alto?et)ior a very failliful ond attractive historical record. It deserves, and will doulrtless have, a very extended ciri.uUition — JVat Intelligencer, FROST.-THE BOOK OF THE ARMY: Comprising a General Military History of tlie United Statf-s, from tJie period of the Revolution to the present time, with particular accounts of all the most celebrated Battles, compiled from the best authorities. By Joht Frost, LL. 1>. Illustrated with numerous Engravings, and portraits o/ distinguished Commanders. One voluiric, iJimo., ijfil 25. This work ijivcs a conip!"to history of military operations, and their ciuses and effects, fron the openim; of tliu llovolution \f< llie close of the last war, with ^fnphic di'srri[itions of the cela lirated h.ittlcs and i'li;:r:uti,'[.-t ofth i leudin;,' generals. It is illustrated with n'lincrous portraits oi Bleel and views of liatllcs, IVoju or ;;inal ri;{itiai ii.iii profound tliinker uii lii.M roadcrH, and Iiur lolt a ■ >H to prcsotit the doctrinoi 1 rcii<";)mod the lauiilia.' from — f.i'iuion Patriot. and particular account! :^cIaralion of Iiidepond autlioritii's. By John yal Songs, Anecdotes, ings, and Portraits o/ ino., jjl 00. iiivo of the nnvnl exploiti ot — U. S. Gine.lte. togetlior a very faiiliful nnd I vory eitendod cin.ul^tion •Jtatf s, from the period ir accounts of all the iiiUliorities. By Jolir ings, and portraits o^ I 25. lir r.iusos and effects, fron lio di'Hcriptions of the rela wilh ii'iincrous portraits oi rs. Tlin iniportaiicoof jtop lon>^, naist lie obvioug to a/ nutionil spirit. C. Rlieniigius Frege- Lloyd Bullock. One St valuable Elementary In- Butical clieraistH, which has e Froncli, by Samuel s. Price 75 cents, or lilo life To nil that nuni- ion, whctbur in boarding, sronnoctod with thrtn.wa ircet their course, subordi- Rlinefttion of " The Young correct in their judgment, year.— Courier ^ Enquirer. -IZATION French Revolution, f History to la FacuJ- tion. Third Ameri- le handsome volume, dern history, distinguighed bject of such peculiar and s, omitting nothin.^ aiien ■■ ability.— JSoit. IVaviUtr Appleton's Catalogue of Vuluahlr. Publications. GRISWOLD— CURIOSITIES OF AMER. LITERATURE: Compiled, edited, and arranged by Rev. Riifus \V. (Jriswold. See D'liraeli GIRL'S MANUAL: Comprising a summary View of Female Studies, Accomplishments, and Pria ciples oi'fyonduct. Frontispiece. One volume, 18mo , 50 cents. GOLDSMITH-PICTORIAL VICAR OF WAKEFIELD. The Vicar d' Wakefield. By Oliver (loldsmith. Illustrated with iipwardi of 100 engravings on wood, making a beautiful volume, octavo, of 300 page*. $1 25. The same, miniature size, 37 1-2 cents. VVn love to turn bark over those rirb old classics of our own Innjuago, and re-juvenate our- aolves by tiio never-failing associations wliich a re-perusal always culls up. Let any one who hoa not read this immortal talo for fifteen or twenty yars, try the experiment, and wo will warrant that ho rises up from tin' ta«k — the pleasure, we should have »nid — a happier and a better man. In the good old Vicnr of Wakefield, all is puro gold, without dross or alloy of any kind, Thia much we have said to our last cencration roadors. This edition of the work, however, wo take it, was got up for the benefit of the rising generation, nnd wo really onvy our young frienda the plea- •uro which is before such of them as will road it I 'bo first time. — Savannah Republican, GOLDSMITH— ESSAYS ON lOUS SUBJECTS, By Oliver Goldsmith. Miniature size, .,, 1-2 cents. Forming ono of the seiies of" .Miniature Classical Library." GRESLEY— PORTRAIT OF A CHURCHMAN, By the Rev. W. Gresley, A. M. From the Seventh English edition. Ono elegant volume, IGmo., 75 cents. " The main part of this admirable volume is occupied upon the illustration of the prtutieal irorkinir of Church priuriple.i ichen sincerely receireil, sotting forth their value in the commerce d daily life, and how surely they conduct those who einiiraco them in the safe and quiet pttth of holT life." GRESLEY.-A TREATISE ON PREACHING, In a Series of Letters by the Rev. W. Gresley, M. A. Revised, with Supple- mentary Notes, by the Rev. Benjamin I. Haight, M. A., Rector of AH Saints' Church, New York. One volume, 12nio. $1 25. .Advertisement. — In preparing the American edition of Mr. Grcsley's valuable Treatiio, a few root-notes have been added by the Editor, which arc distinguished by brackets. The more extend- ed notes at the end have been selected from the best works on the subject — and which, with on* or two exceptions, are not easily accessible to the American student. HAMILTON.-THE LIFE OF ALEXANDER HAMILTON, Edited by his son, John C. Hamilton. Two volumes, 8vo., j|5 00. Wo cordially recommend the perusal and diligent study of these volumes, exhibiting, aa thay do, much valuable matter rotative to the llevolution, the establishment of the Federal ConitiUi- tion, and other important events in the annals of our country. — JV. Y. Review. HEMANS.-THE COMPLETE POETICAL WORKS Of Felicia Hernans, printed from the last English edition, edited by her Siater. Illustrated with G steel Engravings. One beautifully printed and portable volume, 16mo., ^ , or in two volumes, $ Of thia highly accomplished poetcsa it has been trulysaid, that of allher sex '* few hare writ- ten BO much and so well." Although her writings possess an energy eijual to their high-toned beauty, yet are they so pure nnd so refined, that not a line of them could feeling spare or delicacy Wot fiom her pages. Her imagination v/as rich, chaste, and glowing. Her chosen themes are tha scaiile, the hearth-stone, and the death-bod. In her poems of CfPur de Lion, Ferdinand of Ara- |on, and Bernard del Carpio, we see berieath the glowing colors with which she clothes her ideaa, the feelings of a teaman's heart. Her ehrlior poems. Records of Woman and Forest Sanctuary, rtand unrivalled. In short, her works will ever ijoroadby a pious and enlightened community. HEMANS-SONGS OF THE AFFECTIONS, By Felicia Hernans. One volume, 32r.io., gilt 31 cents. Forming one of the aeries of Miniature Classical Library." HARE— SERMONS TO A COUNTRY CONGREGATION, By Augustus William Hare, A. M., la^e Fellow of New College, and Rector of Alton Barnes. One volume, royal 8vo., $2 25. 11 ,%. V] <^ /2 / ^^^' <■>. *"^\°^ *> IMAGE EVALUATION TEST TARGET (MT-S) Hi 11.25 ■ 25 I a |2g 1^1^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ v.. 4\^ r\> ^\ .-^ N> ^\ i\ \^ t/. \ 6^ ^ w m A -. 5 f* Appleton's Catalogue of V'^oluahle Publications. HALL.— THE PRINCIPLES OF DIAGNOSIS, Uy Marshall Hall, M. D., F. R. 8 , «&<-. Scrnnd edition, with many improve* ments. By Dr. John A. Sweet. One volume, bvo., $'i 00. Thin work '^a* published in acconlance wiiii the ilniiiro of nome of the mott cnlnbratcil phyci- •iani or this country, who were nnxious that it should he lirnnght within the reach of all claasw al medical men, to whose attention it otTcrs strong claims as the best work on the subject. HAZEN.— SYMBOLICAL SPELLING-BOOK. T!.« Symbolical Speiling-Book, in two parts. By Edward Hazen. Contaia- ing 288 engravings. IS 3-4 cents. This work is used in upwards of one thousand difTorcnt schools, and pronounced to be aiM d the best works published. HODGE.— THE STEAM-ENGINE: Ita Origin and gradual Improvement, from the time of Hero to the present day, aa adapted to Manufactures, Locomotion, and Navigation. Illustrated with 48 Plates in full detail, numerous wood cuts, &c. By Paul U. Hodge, C. £. One volume foli^ of plates, and letter-press In 8vo. $10 00. This work should bo placed in the " Captain's Office" of every steamer in our country, nnd also with every engineer to whom is confided the control of the engine. From it they would de- rive all the information which would enable them to comprehend the cnu«<) nnd effects of every ordinary accident, and also the method promptly and successfully to repair any injury, and to rem- edy any defect. HOLYDAY TALES: Consisting of pleasing Moral Stories for the Young. One volume, square l6mo., with numerous illustrations. 37 1-2 cents. Tkie if a moat capital little book. The stories are evidently written by an able hand, and that •ao in an exceedingly i.ttructive style. — Spectator. HOOKER.— THE COMPLETE WORKS Of that learned and judicious divine, Mr. Richard Hooker, with an account of his Life and Death. By Isaac Walton. Arranged by the Rev. John Keble, M. A. First American from the last Oxford editi lopicH. Al\cr those eight l>uok8 of the "Laws of Ecclesiastical Polity," follow two :*ermons, "'J'he certainty nnd pnrpptuity of Faith in the elect; espcciull^of the Prophet Ilabakkuk's faith ;" and " Jusiitication, VVorks, and how the foundation of faith is overthrown." Next ure introduced " A supplication made to the Council by Muster Walter Travers," nnd "Mr. Hooker's answer to the supplic;ition that Mr Tracers made to the Council." I'hen follow two Sermons — *' On the nature of Pride," and a '* Remedy against Sorrow and Fear." Two Sermons on part of the epistle of the Apostle Jude are next in- serted, with n prefatory do.lication by Henry Jackson. The lust article in tlie works of Mr. ilookei la a Sermon «>n Prnyor. The English edition in three volumes sells at $10 00. The Americon is an exact reprint, at less than half the price. HUDSON.— THE ADVENTURES OF HENRY HUDSON, By the autlMr of " Uncle Philips Conversations." Frontispiece. Idmo, cloth. 37 cents. Forming one of the series of'* A Library for my Young Countrymen." Thia little volume furnisher ns, from authentic sources, the indft important facta in this cc'e- wated adventurer's life, hnd in a stylo that possesses more than ordini'.:y interest. — Evening P«.< HOWITT.-THE CHILD^S PICTURE AND VERSE-BOOK; Commonly called "Otto Speckter's Fable-Book." Translated from the Ger- man by Mary Howitt. Illustrated with 100 engravings on wood. Square 12mo., in ornamental binding, $ A celebrated German review says, '-Of this production, which makes itself an epoch in the wwld of children, it is superfluous to apeak. The Fable-Rook is throughout all (iermany in t)i« ■*oda of parents and children, and will alwaye be new, hecauae every year fresh children are hom * 13 >ns. nany improve* ; cnlnbratPd ph;fi> ^ach of all clatMs e subject. ;en. ContaiB- meed to b« aat d le present day, lIuHtrated with aiil U. Hodge, $10 00. I our country, nmi it they would de- d etfecm of every ijury, and to rem- olume, sqiiar* ble hand, and that an account of iT. John Keble, [h n complete expressly for lition of Hooker'f i'o of Hooker, bi lo neck the refor- lisruiision ii divi- i!,'ht tHJokn of the tuity of Fnith in rk«. and how the lu to tlie Couiirii hnt Mr Traten and a ■' Remedy ude are next in- ks of Mr. iiookei exact reprint, at D80N, ece. Idmo, icts in thii cr'e- — Evening PoM. E-BOOK; ■om the Ger- >od. Square an opo«:h in the Germany in tiie Idrnnar* horn * / \ Applcton's Catalogue of V^nluahle Publictitions. HOWITT.-LOVE AND MONEY; An Every-Diiy Tale, hy Mary Ilovvitt. le*ino., two Platea, cloth gilt, 38 cents LITTLE COIN, MUCH CARE; Or, How I'oor People Live. By Mary Ilowitt. Idmo., two Plates, 38 cents SOWING AfJD REAPING; Or, What will Come of It. By Mary Howitt. Idmo., two Plates, 38 cents. ALICE FRANKLIN; A Sequel lo eawiiig and Reaping — a Tale. By Mary Howitt. 18mo. two Plates, cloth gilt, 38 cents. - WORK AND WAGES; Service — a Tale. By Mary Howitt. 18mu., two Plate«, cloth Or, Life in gilt, 38 cents STRIVE AND THRIVE; A Tale. By Mary Howitt. 18mo., two Plates, cloth gilt, 38 cents. WHO SHALL BE GREATEST; A Tale. By Mary Howitt. 18mo., two Plates, cloth gilt, 38 cents. WHICH IS THE WISER; Or, People Abroad — a Tale. By Mary Howitt. 18mo. two Plates, 38 cents. HOPE ON, HOPE EVER; Or, The Boyhood of Felix Law— a Tale. By Mary Howitt. Plates, cloth gilt, 38 cents. 18mo., twe NO SENSE LIKE COMMON SENSE; A Tale. By Mary Howitt. l8mo., two Plates, cloth gilt, 38 cents. *^* The above ten volumng form a portion of the icries puhlifihod under the general title ol '•Talc* for tho People and their Children." Of Into ypiirfi many writers have exerted their tnlonti in juvenile literature, with ?rcnt lucceas. Misi Martiiicnu hn« made poli-<.cal economy as familiar to boys aa it formerly wa^i to ■tatcameii. Ourown MisK Hodgwick has produced Homoofthe moit beautiful moral itorii.-R, for the edification and delight of child.-en, wlii'-h have ever been written. The Hon. Horace Mnnn, in addieitea to nilulta, hai« pronentod the cInimR of children for good education, with a power and olo(]U«-nce o( f tylc, and an nievnticn of thougiit, which sliowi hifi heart is in his work. The stories of Mary llitwiit Iliiiriet .Martinenu, >",'••«. (Jopley, and Mr«. KIlis, which form a part of" ThIps for tlie Peo- ple and thxir (.'liildren." will h» ^uud valuable addition* to juvenile literature ; at the anmo tiin« they nmy br> read with proHt by parents for the good loisons they inculcate, and by all other read- ers for thi- limrary rxri'licnco they display Wo wisli they '*ould Itn placed in the hands andeni^aven on the minds of all the you'n in the country. Tlicy manifest n nice uiid accurate observation of human nature, and especially the na- tu c ofchildrcn,afinefiympatliy with every thing good and pure, and a capability of infusing it in the minds of others — great benuty and simplicity of stylo, and a keen eye to practical life, with all its faults, united with a deep love for ideal excellence. Mijssrs Appleton ic Co de<«crve tho highest praise for tho oxcollcnt manner in which they have "got up " their juvenile liiirury. and we sincerely hope that its success will be so great as to induce them to make continu:il contributions to its treasures. The collection is one which should \h! owned by every pitrontwho wisliOH tliat the moral and intdloctual iniprovcmcntof his children should keep pace with their growth in years, and the development of their physical powera^— jlmmrieoH Traveller JERRAM.-THE CHILD'S OWN STORY-BOOK; Or, Tales and Dialogues for the Nursery. By Mrs. Jerram (late Jane Eliza- beth Holmes). Illustrated with numerous Engravings. 50 cents. There are seventy stories in this volume. They are admirably adapted for the conntloM fouth for whose edification they are narrated — Boiton Oatettt. JOHNSON.-THE HISTORY OF RASSELAS, Prince of Abyssinia — a Tale. By Samuel Johnsen, LL. D. 32mo., gilt leaves, 38 cents. *«,* Foncing one of the series of" Miniature Cloaiieal Librorv." 13 1 if;'.:*. P= f.ii. Appteton's Catalogue of Valuabk Publications. JAME8.-THE TRUE CHRISTIAN, Exemplified in a Series of Addresses, liy Uev. Juhn Angell James. Oneyol IHiiio, 3'^ cents. Theso adilrcsiei aro amongat the clioiccit efTunioni of the admirable author. — Ckr. InttU, THE ANXIOUS INQUIRER Art**- Salvation Directed and Encouraged. By Rev. John Angell James. One volume, 18mo., 38 cents. Upwards of twenty tlioimnnd copin* of thii* oxccllont littlo volume have been told, which Ail^ Ktcits the high oatimutiun the worii has attained witli tho rnligiouR comtnuiiity, HAPPINESS, ITS NATURE AND SOURCES. By Rev. John Angell James. One volume, 32mo., 2.~) cents. This is written in t)ie excellent author's beat vein. A better book wo have not in a long tinM •een. — Evangelist. THE CHRISTIAN PROFESSOR: n a Series of Counsels and Cautions to the Members of Christian By Rev. John Angell James. Second edition. One volume, ^lii Addressed Churches. 18mo., G3 cents A moit excellent work from tho ablo and prolific pen of Mr. Jamet.— CAr. IiUelligeneer THE YOUNQ MAN FROM HOME. In a Series of Letters, especially directed for the Moral Advancement of Youth. By Rev. John Angell Jaiu'-s. Fifth edition. One volume, ]8mo., 38 cents. The work is a rich treasury of Christian counsel and instruction. — Mbany Advtrtutr THE WIDOW DIRECTED To the Widovir'g God. By Rev. John Angell James. One volume, 18mo., 38 cents. The book in worthy to be read by others besides tho class for which it is especially designed ; Ind we doubt not that it is destined to come as a friendly visitor to many a house of mouriiin(i, md as a healing balm to many a wounded heart. — JV. Y. Observer KEIGHTLEY.— THE MYTHOLOGY OF GREECE And Italy, designed for the use of Schools. By Thomas Keightley. Nume> rous wood-cut illustrations. One volume, Idmo., half bound, 44 cents. This is a neat little volume, and well adapted to the purpose for which it wos prepared. It presents, in a very compendious and convenient form, every thing relating to tho subject, of impor- tance to the yonng student. — L. I. Star, KINGSLEY.— THE SACRED CHOIR: A Collection of Church Music, consisting of Selections from the most distin- guished Authors, among whom are the names of Haydn, Mozart, Beetho- ven, Pergolessi, &c. &c., with several pieces of Music by the Author, also a Progressive Elementary System of Instruction for Pupils. By George Kingsley, author of the Social Choir, &c. «&c. Fourth edition. 75 cent^. Mr. George Kin^slcy : Sir, — We have exnminedtlie " Sacred Choir " enough to lead us to a^- praciato the work as tho host publication of Sacred Music extant, ft is beautifully printed ani •■bstantially bound, conferring credit on the publishers. We bespeak for tho " Sacred Cnoir" axteniivo circulation O. 8. BowDOiit, Sincerely yours, E. O. Goodwin D. Iroraham. KIP.-THE DOUBLE WITNESS OF THE CHURCH, By Rev. Wm. Ingraham Kip, author of" Lenten Fast." One volume, llmo Second edition. Boards 75 cents, cloth $1 L'^. This is a sound, clear, and able production — a book much wanted for these times, and one th«t we feel persuaded will prove eminently useful. It is a hnppy delineation of that doublb witnrm which the Church bears asainst Romanism and ultra-Prutpstantism, and points out her midilk path as the only ovn of truth tiid safety. — Banner t\fthe Cross. 14 01 itions. Jamei. One rol ithor— CJkr. JntM, in Angell James. been lold, which Ail^ iiiitT. OURCE8. 8. lave not in a long tiiiM nbers of Christian on. One volume, ir. InttUigenter Advancement of 1. One volume, \y Advertuer »e volume, Idmo., I cipccially deiigned ; a house of inouriiin(ri ECE ightley. Nume* und, 44 cents. it waa prepared. It the lubject, of iinpo»- the most distin- Mozart, Beetho- the Author, also lils. By George ition. 75 cent^. ugh to lead us to a^- aiitifully printed an4 "Sacred Lnoir" loWDOlIf, Goodwin R4HAM. JRCH, volume, \1\no timet, and one th«t at DOUBLB WITMRM linti out her midJU Appleton's Cataloffur of Vdluubk Puhlirations. LAFEVER.-BEAUTJES OF MODERN ARCHITECTURE Consisting of forty -ei^'lit I'latt's of Orifjiiiiil DcsIkih, willi Plans, Elevations and Sections, also a Dirtionarv of Tfrjinical Terms ; tho wltnlo forming coinplote Manual fur tliu I'racticuil IJuilder. Ily M. Laftiver, Architee One volume, large Hvo., half bound, $ii 00. STAIR-CASE AND HAND-RAIL Construction. The Modern Practice of Stair-case and Hand-rail Constructioi*^ practically explained, in a Series of Designs. By M. Lafever, Architecf With Plan."* and F-h'vations for Urnaniental Villas. FiAeen Plates. On* volume, large 8vo., ^3 00. Mr. Lafevrr'd " ncniitim of ArcliitPctiirp," niul hid " Prnrtire of ^tair-caite and Ifanil-rnil cob ■truction," rontitituto two voliitncR rir.li in inntriinion in thnan dp|>iirtinenti( of liuwinoiiK. 'I'Utty •rii a nnt csRiiry nnquinition not only to thn nptTiitivu worknmti, l)iit to nil lundlonlt mid propriotora of huuscH, who woiil'l coriiliino botli thoornuiiiontnl and uhpI'iiI in thnir fiinuly (!i<• the Principal Arguments advanced, and the Mode of Reasoning employed, by the Opponents of those Doctrines, a» held by the Established Church. By the late Most Rev. William M'Gee, D. D., Arch> bishop of Dublin. Two volumes, Bvo., $5 00. Thifi is one of the ablest critical and polcr.iical works of modern times. The profound biblical informiition on a variety of topics which the Archbishop brings forward, must endear bis name to all lovers of Christianity. — Orine, MANNING.-THE UNITY OF THE CHURCH, By the Rev. Henry Edward Manning, M. A., Archdeacon of Chichester. On« volume, IGmo , $1 00. Part I. Tho History and Exposition of the Doctrine of Catholic Unity. Part 11. The Moral Design of Catholic Unity. Purt lU. The Doctrine of Catholic Unity applied to the Actual State of Chri.otendom. Wu coinmvnd it earnestly to tho devout and serious perusal of all Churchmen, and particularly of all clergymen, ug the able^il discussion we over met with of a deeply and vitally important sub- ject. — Churchman. MARRYAT— MASTERMAN READY; Or, The Wreck of the Pacific. Written for Young Persons, by Capt. Marry* at. Complete in 3 vols., 18mo., with Frontispiece, cloth gilt, $1 25. Forming a portion of the series of" Tales for the People and their Children." We have never seen any thin? from the same pen we like as well as this. It is the moden Crusoe, and is entitled to take rank with that charming romance. — Commercial Advertiser. MARSHALL-NOTES ON THE EPISCOPAL POLITY Of the Holy Catholic Church, with some account of the Developments of Mo dern Religious Systems, by Thomas William Marshall, B. A., of the Dio cese of Salisbury. Edited by Jonathan M. Wainwright, D. D. With » new and complete Index of tho Subjects and of the Texts of Scripture On» volume, 12mo., $1 25. I. Introduction. II. Scripture Evidence. III. Evidence of Antiquity. IV. Admission ol Adversaries. V. DevelopmentofMwiern Religious Systems. A more important work than this has not been isnuod for a long time. We earnestly recOLITY opments of Mo A., of the Dio D. D. With* (ts of Scripture IV. Admission ol ^e earneatly rec., Frontispiec* dren.»' of the diitinguiakai INCE; i volume, 18mo dren.' Horc, in a ityk tomoofmany faata AppU ton' J LUitfihi^ue of Voiuuint r uuiii.ankini>. MAURICE— THE KINGDOM OF CHRIST; Or, Hints respecting tlie rrinriplt-s, Constitiition, iitui Or«lin!iiir»s of the Cath- olic Cliiirrh. By Kev. p'rodtfrick Denisun Maurice, M, A. London. On* volume, 8vo., (JOO pngcs, ,^2 .'H). On the th«or> of the Cliurch oft.Miri-t, nil shnulJ conDiilt tho work of Mr. Maurice, the nmH philosophical writer of tho day. — Prof. Garhett's bampton Lectures, \0 cents. PARADISE REGAINED, By John Milton. With Notes, by Rev. H. St»>bbing;^. One volume, 18mo., cloth 25 cents, gilt leaves 38 cents. MAXWELL— FORTUNES OF HECTOR O'HALLORAN And his man Mark Antony O'Toole, by W. H. iMaxvvell. One volume, 8vo., two plates, paper, J')0 cents, twenty-four plates, boards, .^1 00, cloth, $1 25 It is one of the hentof all the Irish stories, full of s.iirit, fun, ■■< I*' ■ Apj.leton's Catalogue of Valuable Publications. K NAPOLEON.-PICTORIAL HISTORY Of Napoleon Uonapnrt**, traiisluted from the French of M. Lanrent de L'Ar- dech«*, with Five Ilnndred spirited Illustrations, aOer designs by Horace Vf«-n.:t, «;::J twenty Original Portraits engraved in the best style. Com- pleto in two handsome volumes, 8vo., about r>UO pages eacii, $3 50 ; cheap edition, paper cover, four parts, $2 OU. The work ia nuporior to the long, verboae proo rend hy people of all donomitt*. tiona; na inodelaufatylo, they will bo valued by writcra in every department of )i erature.— C/iiiMtf Slates OaieUe. OGILBY.-ON LAY-BAPTISM: An Outline of the Argument against the Validity of Lay-Baptism. By John D. Ogilby, D. D., Professor of Eccles. History. One vol., lijmo., 75 cents. From a cursory inapeclion of it, we take it to bo a thorough, fcarlen*, and ablcdixcuaaion of the ■ubjoct wliich it propoaea — aiming loaa to excite inquiry, than to aatiafy by learned and ingenioui argument inquiriea already excited. — Churehman, CATHOLIC CHURCH IN ENGLAND And America. Three Lectures — L The Church in England and America Apostolic and Catholic. H. The Causes of the English Reformation. HI Its Character and Results. By John D. Ogilby, D. D. One vol., 16uio., 75 cents. " I believe in ono Catholic and Apoatolic Church." JWcene Creed Prof. Ogilby baa furnished the Church, in thia little volume, with a most valuable aid. W« 'Jiink it ia odic8 a maas of intelligence intereatinj; to the ordinary reader as well aa to tbo philoaophical inquirer. — Courier ^ Enquirer PAGET.-TALES OF THE VILLAGE, By the Rev. Francis E. Paget, M. A. Three elegant volumes, ISmo., $1 7» The firat aeries, nr volume, prcHcnta a popular view of the contrast in opiniona and model of thought hctwu'jn Cburchinen and Romaniata ; the second seta forth Church principles, as opposed io what, in England, is termed Dissent ; and the third plact^s in contrast the chaiactor of ths Churchman and the Infidel. At any time these volumes would be valuable, eHpoiinlly to tho young. At present, when men's minds are much turned *o such aubjecta, they cannot failof l>ein( eagerly sought tat.— JSTcie- York American PALMER-A TREATISE ON THE CHURCH Df Christ. Designed chiefly for the use of Students in Theology. By the Rev. William Palmer, M. A., of Worcester College, Oxford. Edited, with Notes, by the Right Rev. W. R. Whittingham, D. D., Bishop of the Prot Epis. Church in the Diocese of Maryland. Two volumes, 8vo., $5 00. Ths chief tlesign of thia work ia to supply some answer to the aascrtion ao frequently made. ttiat individuaU are not bound to aubmit to any cccleaiaatical authority whatever : or that, if tbey Ha, tb«y muat, in conaiatoncy, accept Romaniam with all ita claims and erron. — Pre/oec 18 ons. aiirent de L'Ar- ligns by Horace 8t Btyle. Com- I, $3 50 ; cheap icnne — not in itjl* I aristocracy, hut te Unerirun TravtUtr. edition in two mo., $1 25. lie of all donomina- 'li eralure.— C^iiitW tisin. By John iJiino., 75 cents. iRdiscuDsion of th« iriieii UD'l inyenioui d and America ormution. Ill 3ne vol., 16nio., eed valimlile nid. *u« Catttolie. 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The subjects to imnu-diiiiL'lv follow will bo, Munufacturo of Gliiss, Imiiijo, Sulphuric Acid Zin^ Potuh, Coffee, Tea, Chocolate, &c. PEARSON— AN EXPOSITION OF THE CREED, By John Pearson, D. D., late Bishop of Chester. With an Appendix, contain, ing the principal Greek and Latin Creeds. Revised and corrected by the Rev. W. S. Dobson, 31. A., Peterhouse, Cambridge. One vol.,dvo.,$U 00. The following way be stated as the ailvantag.:^ o/thii edition over all nthern . First — Great caro hag been luken to correct Iho numerous errors in tiie rcferonccs to the teita of Scripture, which had crept in l>y reason of the repeated editions through which this udinirable work has passed, and many references, as will bo seen on turning to the Index of 'J'eita, hav« Men added. Secondly — The Quotations in the Notes have been almost universally identified anu the refer- ence to them adjoined. 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