^, >^<.^_ o S%.^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I S^i |22 2.0 m ■u L25 m 1.4 6" O / ^ V Pliotographic _Sdenaes Corpcmtion 23 WEST MAIN STREET WEBSTER, N.Y. MSM (716) 872-4503 \ sv ^ •ss <^ ^ "^.•*'- 6^ ^^^ ^ i CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / tnstitut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes technique* et bibliographiques The Institute has attempted to obtain the best original copy available for filming. 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Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout6es lors d'une restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas 6X6 fiimdes. Additional comments:/ Commentaires suppl^mentaires: L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent Axiyer une modification dans la methods normale de filmage sont indiquAs ci-dessous. I I Coloured pages/ D the same statesman, through the avowed motive of not giving offence to Spain, objected to a treaty, in which Great Britain seemed to impute to the United States the desire of appropriating part of the north-west coast. Do not these undeniable facts lead to the irresistible inferences, that America did not, within reasonable time, assume the benefits of Gray's discovery, and that, if it had assumed them at first, it would have afterwards forfeited them by waiver? To bring the question to a practical test, America could not, at least for fifteen years after 1792, have found any the least pretext in the law of nature or of nations for remonstrating with any State that might have actually appropriated to itself the Columbia Valleys in property and do- minion ; nor could it, after the lapse of those fifteen years, set forth for the first time, an inchoate title, 19 which, according to its very terms, must have existed, in order to exist at all, yrom the heginmn^. In strictness, therefore, America is not entitled on the score of discovery, to any portion of the dis- puted territory, «vhile England, through Drake, and Broughton, and Thompson, and its explorers of the Southern Valleys, is entitled, according to the usages of the civilized world, to carry the effect of its discoveries to the main height of land, in default of conflicting discoveries. Greenhow, it is true, smiles at the antiquity of Drake*s claim. In spite, however, of the delay, it is still good against those who have no claim at all ; and certainly it has never been waived, for Drake's original acquisition, besides being recorded on every map under the name of New Albion, was embraced by the charters of Carolina, Virginia, &c. I SETTLEMENT. Settlement is merely such a possession as poten- tially applies — actual application beii.^ at first impossible — a country to its natural and proper use ; and hence every attempt at settlement is en- titled, as against all competitors, to such a range of territory as may be necessary for its successful working. : To take an instance from the convention of 1790 between Spain and England, that treaty declared the unoccupied wilderness of the west coast to the c 2 I !j 20 north of the Spanish settlements to be open for colonization to both natic. j. Now, without violat- ing the spirit of this agreement, England could not have planted a colony in the very neighbour- hood of Port San Francisco, or nearer to Port San Francisco than Port San Francisco was to Mon- terey. The range of territory in question may sometimes be fixed by nature herself. Thus the foundation of New Orleans amounted to a possession of the Mis- sissippi Valleys, and the foundation of Quebec to a possession of the St. Lawrence Valleys, at least as against maritime intruders ; and the foundation of Astoria, if all the rights of discovery had centred in America, might have amounted to a possession of the Columbia Valleys, excepting against inland rivals. ; , ,; Farther, according to the most obvious dictates of truth and reason, the settlement, in order to give the nation a claim, must be founded, if not by the nation, at least under the national authority. Now, though this national authority may be presumed in favour of any nation that holds the principle of indelible allegiance, for it may at any time be en- forced with respect to subjects that have migrated without placing themselves under such a local law as the civilized world recognizes, yet it cannot be pre- sumed in favour of any nation, — the United States, for instance, — that repudiates the principle in ques- tion ; and perhaps neither description of nation 21 can demand to be identified with a knot of fo- reigners, merely because such foreigners may choose to hoist the national flag, — uuless, of course, the ter- ritory, as such, be clearly and undeniably national. To add one word more, the abandonment of a settlement amounts to a forfeiture, not only of the actual possession, which may have been involved in settlement, but also of the contingent possession, which may have rested on discovery. It is, in short, the clearest and strongest of all waivers. The bearing of those palpable truths on the following undeniable facts will hardly require to be stated. ^^^ ' Towards the close of the last century, the Spa- niards formed two settlements, one in Nootka Sound, and another on the southern side of the Strait of Fuca, soon abandoning the former in favour of England, and as soon deserting the latter, without condition or qualification. But, even if maintained, those settlements were not entitled to a very wide range of territory, for, like the Califor- nian colonies, they were merely the dog in the manger, destined to bark and starve. They were a fraudulent mockery of actual possession, neither applying, nor promising to apply, the coveted region to any purpose whatever. In or about 1810, Henry established an American post at the head of the Southern branch of the Co- lumbia, almost immediately evacuating it; in 1811, Mr. Astor's pai tners, who were chiefly Scotchmen, 22 ■\'t planted four stations on the Columbia and its feed- ers, forsaking one and all of them before the close of 1813 on account of the war. If in later years other attempts have been made, they either have proved failures in the end or have been from the beginning mere accretions to previously existing settlements of the English. To say nothing of Henry's flying visit, Astoria and its dependencies, even if not abandoned, would have vested in the republic at best a very slender claim. They were neither founded by the nation nor under the national authority ; they were commanded chiefly by Scotch- men, and manned chiefly by Canadians, so that, if they had been kept up under such management till 1821, they would have become the subject of re- monstrance on the part of England, as enabling British subjects to evade the Hudson's Bay Com- pany's exclusive licence. As the settlements in question neither stood on American territory nor were held by American citizens, they could not ex- pect, as a matter of right, to be acknowledged as national establishments ; and if the exclusive licence aforesaid had been granted, as it might have been, ten vears sooner, they would most probably have been subjected to domiciliary visits for the purpose of recovering those who would have been violating their indelible allegiance, while the Americans could not have based any complaint in the premises on any principle whatever of public law. Neither the cap- ture of Astoria nor its restitution involved any ad- 23 mission of nationality on the part of England, for Astoria was liable to be taken, because it shewed the American flag, and was to be restored under the treaty of peace, because it had been taken. If the capture and the restitution had any effect beyond their own essential range, they concurred in proving that very abandonment, which divests the question of nationality of all practical importance. Previously to the capture, Astoria had been given up for a price to the North-west Company, its " buildings " as well as its goods having been appraised and sold ; and subsequently to the restitution, the post was never attempted to be re-established. In 1806 and 1811 respectively, the North-west Company established trading posts on the Tacoutche Tesse and the Columbia, never receding but always advancing down to 1821. Subsequently to the year last-mentioned, the Hudson's Bay Company, after filling up the outline of its predecessor, struck the roots of its commerce even into the Great Archi- pelago and the Southern Valleys ; and accordingly, to quote Greenhow's own words, " in the course of a few years, the whole region north and north-west of the United States, from Hudson's Bay and Canada to the Pacific, particularly the portion traversed hy the Columbia and its branches, was occupied, in a military sense, by British forces, although there was not a single British soldier, strictly speaking, within its limits." But the country has been " occupied " not merely " in a military sense." Not only has its every nook been vigorously and systematically appro- priated, according to its natural capabilities, either to the fur-trade or to the fisheries, but also the few spots which are susceptible of cultivation, have been formed into agricultural settlements, namely, the shores of Puget Sound, and the banks of the Walla- met, the lowest feeder of the Columbia on the left. On Puget Sound the Americans have done nothing ; and though on the Wallamet they have recently be- come the majority, they cannot thereby have affected England's original claim of prior settlement, — even if American citizens carried with them, in presump- tion of law, American nationality. On the ground of actual possession, therefore, — the strongest, by the bye, of all grounds, — England sees not even the shadow of a rival. tf CONTIGUITY. Though, all other things being equal as between claimants, contiguity certainly ought to decide as a make-weight, yet, if stretched beyond the point, it resolves itself merely into that insane perversion of the doctrine of natural boundaries, which sacri- fices the rights of the weak to the aggrandisement of the strong. Under this head, Spain once had the strongest claim, for, even without reckoning California, the ports of San Bias and Acapulco were nearer to the !K}rth-west coast than any portion of the United li^ ^ 25 States, or any territory of Great Britain ; but this local superiority Spain virtually lost in or about 1810, namely, at the very commencement of the troubles that in 1821 gave full and perfect inde- pendence to Mexico. Nor could Spain at any time have founded much of an argument on the physical fact of its proximity. The richer provinces were sufficiently protected towards tb^ North by wilder- nesses wider far than those withm which the Suevi by fire entrenched themselves, while the wilder- nesses themselves had been repeatedly coasted for two centuries and a-quarter before they received their maritime germs of San Diego, Monterey, and San Francisco ; Spain, therefore, neither needed the North-west coast for the purposes of defence, nor was likely to use it for the purposes of settle- ment. ^,,,.' On a superficial view of this head, America may seem to have a stronger claim than England. In fact, the argument of contiguity, which is indebted for its existence to the buying of Louisiana in 1803, has been, according to Greenhow himself, the grand motive for trying to fan into life the still-born argu- ment of discovery ; and, from the whole tenor of the proceedings, nothing appears to be more cer- tain, than that the north-' ?est coast, if separated from the United States by Ip.nd or by water, would never have become a bone of contention between America and England. But the proximity of the republic is rather apparent than real, for between 4 ?i i 1' !i II 26 the habitable tracts on either side of the Rocky Mountains, there intervenes an almost impassable waste of about four hundred miles in breadth. Let Greenhow speak : — " The southern part of this region," namely, that part of the upper region which enters into the alleged contiguity, " is a desert, of steep rocky mountains, deep narrow valleys, called holes by the fur-traders, and wide plains, covered with sand or gravel ;" and " the country east of the Rocky Mountains, for more than two hundred miles, is almost as dry and barren as that immediately on the western side." Greenhow, moreover, furnishes the conclusion as well as the premises. " The interposition of this wide desert tract between the productive regions of the Mississippi and those of the Columbia, must retard the settlement of the lat- ter countries, and exercise a powerful influence over their political destinies." Nor have the results been different from what Greenhow leads one to expect. Even as late as 1829, the overland route from St. Louis to 'he sources of the Platte, the most southerly of the main branches of the Mis- souri, occupied, according to Greenhow, three months and six days, the interval from 10th April to l6th July ; and if there be added the periods required for passing from the internal sources of emigration to St. Louis, and for traversing the whole of the breadth and the half of the length of the disputed territory, contiguity will appear to do something less for Massachusetts than Cape Horn 27 is ready to do for England. The Americans have themselves practically confessed this, for both the founders of Astoria and the latest settlers for the Wallamet preferred the length of two oceans to the one contiguous belt of desolation and misery. If the Americans themselves thus choose the seas as their highway to the north-west coast, the English are as decidedly superior on the score of contiguity, as they have been shown to be on the score of possession ; for, where the means of com- munication are equal, the country that habitually sends forth myriads of emigrants, must sooner people a distant shore, than the country that habi- tually receives more recruits on its maritime border than it pours into its inland valleys. So clearly is this the case, that, even if the contiguity of the Americans were not apparent but real, the English could still outrun them in the race, for New Zea- land and most of the Australian colonies have at least kept pace with the average growth of an Ame- rican territory, or, in other words, of such a portion of wilderness as is set apart for the purpose of ulti- mately ranking as an equal member of the union. But the superiority of Great Britain is still more decisive in a political sense than in a physical view. Though for many an age England can undeniably keep whatever share it may obtain of the disputed territory, yet America never can maintain any closer relation with the north-west coast than that which subsists between England and itself, or itself and 28 Ui Texas, — the same relation, in fact, that was antici- pated by Mr. Jefferson in the language already quoted, "unconnected with us but by the ties of blood and interest." It would be almost impossible for the Oregonese to send representatives a journey of six or seven months to Washington, unless they should adopt the plan of despatching separate batches for alternate years; and, even if the journey were shorter in point of time, the mileage, particu- larly if charged by the route of Cape Horn, would render the tramontane visitors a disproportionate drag on the national exchequer. It would, more- over, be altogether impossible for the national go- vernment to exercise any control, unless by suffer- ance, on the farther side of a desert impassable to large bodies of men, while a naval squadron would itself be in greater danger ^rom the want of shelter, than a surf-beaten shore would be from all its threats of invasion or blockade. But, as between the last-mentioned two claimants, contiguity has been not merely the foundation of the general claim of America, but also the ground- work of its special demand, that the parallel of 49°, which is the common boundary to the eastward of the Rocky Mountains, be held to be so all the way to the Pacific Ocean. Now, if there were no other argument on either side, nothing could be more reasonable than that the eastern portion of the dividing line should be taken as a model for the western. Nor has England any reason to shrink ft ? 29 from such a criterion. The eastern portion follows, as far as possible, natural boundaries to whatever latitude such natural boundaries may lead ; for, be- ginning at the mouth of the St. Croix River on the parallel of 45°, it ascends, according to the literal interpretation of the treaty of 1783, to the parallel of 48° on nearly the same meridian, then descends at the head of Lake Erie to the parallel of 42°, and afterwards trends away to the northward, till, at the farther end of the Lake of the Woods, it almost cuts the parallel of 50°, thence running due south to the parallel of 49°, and thence again due west to the Rocky Mountains. In all this immense space the parallel of 49° is the only arbitrary section of any length, though there is but little difficulty in proving that the neces- sity of an artificial boundary was as inevitable here as in any of the less remarkable instances. The framers of the treaty of 1783 are generally sup- posed to have believed the Lake of the Woods to be a tributary, not of Lake Winepeg, but of Lake Superior,— a mistake less strange, all things consi- dered, than that made by Mr. Webster during the negociation of the Ashburton Treaty, to the effect, that the Red River of the north flowed out of the Lake of the Woods. But whatever the authors of the compact meant or expected, the compact itself certainly carried the international border across the only available natural boundary, namely, the height of land between Hudson's Bay and the Gulf 30 of Mexico. When, therefore, the purchase of Louisiana brought England and America into con- tact as far as the mountains, the question was settled by compromise. According to the treaty of Utrecht, commissioners were appointed to draw the boundary between Hudson's Bay and the French possessions, which then comprised both Canada and Louisiana, but the appointment was followed by no result. On maps published subsequently to the date of that treaty, two lines of demarcation are laid down, the one following the parallel of 49^, and the other the height of land between the Gulf of Mexico and Hudson's Bay ; from which it may be supposed that each of these lines was discussed by the com- missioners. The former was, most probably, deemed at the time the more advantageous to England ; for, even as late as 1783, the sources of the Mississippi were assumed to lie to the northward of the north-westernmost point of the Lake of the Woods. As to the height of land, it could not, as a whole, be adopted, inasmuch as the Lake of the Woods lay above it ; while in favour of the parallel of latitude, which was now known to be more favourable to the southern than to the northern claimant, the Americans could argue, that, under the treaty of 1783, the whole continuation of the line was to run due west from the extremity aforesaid of the Lake of the Woods to the river Mississippi, then, as already mentioned, supposed to rise farther to the northward. 31 To conclude : since the principle of the dividing line on the one side of the mountains is the prefer- ence of natural boundaries, the extension of the same principle to the other side of the range would give nearly the same result as the most liberal view of the argument of discovery. The natural boun- dary would be the Lower Columbia up to the fork, and, above the fork, the height of land between the two grand branches ; and all that would be wanting to identify the two results would be the exchange of Bulfinch's Harbour for the Southern Valley. To offer one word more. The Americans have themselves indirectly repudiated even their own extension of the eastern line, by having originally claimed the north-west coast up to the parallel of 51°, and having thereby sanctioned a deviation nearly wide enough, when taken in a different direc- tion, to bring England down to the mouth of the Columbia, — besides being so boldly groundless as to evince a disposition to set everything like justice at defiance. But even as far as the parallel of 49°, the actual circumstances of the case present a curious com- mentary on the doctrine of contiguity. Lewis and Clarke crossed the mountains nearly on the parallel of the mouth of the Columbia. Hunt chose rather to attempt a new route farther south than to tread in the tried footsteps of his predecessors ; and the later travellers have been at last driven as far down as the parallel of 42°, actually passing at one point, !) 32 according to Greenliow's map, through Mexican territory, and having afterwards to climb the lateral range of the Snowy Mountains. Not to deprive the Americans of any available ground of claim, two of their arguments must be mentioned, which, if they do not altogether spurn the trammels of classification, fall rather under the head of contiguity. The president of the year 1823 propounded the maxim, " that the American continents, by the free and independent condition which they have assumed and maintained, are henceforth not to be considered as subjects for colonization by any European power ;" and in a still more exclusive strain of patriotism, Greenhow makes a point of the assertion, that there is " little prospect of the diffusion of the pure Anglo-Saxon race through countries possessed by the Hudson's Bay Company.*' When transplanted to the Pacific, the two prin- ciples, that have yielded so brilliant fruits on the Atlantic to the south, and the north, and the west, respectively exclude from the disputed territory all the old world in a heap, and all the new, save the United States. England, though Anglo-Saxon, has the misfortune to be European ; and Mexico, though American, is stupid enough to " call a hat a som- brero." 33 CONVENTION. Four compacts require particular consideration the treaty of 1790 between Spain and England, the treaties of 1814 and 1818 between England and America, and the treaty of 1819 between America and Spain. Of the treaty of 1790 the following are the ap- plicable articles : — " III. In order to strengthen the bonds of friendship, and to preserre in future a perfect harmony and good understanding, be- tween the two contracting parties, it is agreed that their respective subjects shall not be disturbed or molested, either in navigating, or carrying on their fisheries, in the Pacific Ocean or in the South Seas, or on landing on the coasts of those seas in places not already occupied, for the purpose of C' rrying on their commerce with the natives of the country, or of making settlements there ; the whole subject, nevertheless, to the restrictions specified in the three fol- lowing articles." ** y . As well in tho places which are to be restored to the British subjects, by virtue of the first article, as in all other parts of the north-weatern coasts of North America, or of tho islands adjacent, situate to the north of the parts of the said coast already occupied by Spain, wherever the subjects of either of the two powers shall have made settlements since the month of April, 1789, or shall hereafter make any, the subjects of the other shdl have free access, and shall carry on their trade without any dis- turbance or molestation." The third article was clearly intended to set aside the conflicting questions as to discovery and its attendant rights, by recognising the rule, that settle- 'ii 11 (I ;i il! 34 ment on the principle of " first come, first served," should be decisive and conclusive ; and the fifth article merely provided, thc:t any new settlements of the one power shruid be open to the traders of the other. In other words, the two articles, taken together, I eld settlement to confer a perfect right of sovereignty, saving only the commercial reser- vation. But this treaty, it has been argued, was ipso facto annulled in 1796, by the war which then broke out between the contracting parties, and was never sub- sequently revived. That the fifth article was annulled, is undeniable. With respect, however, to the third article, the case was widely different. Though its practical provi- sions were, of course, suspended, yet the fundamen- tal right, which they were meant to enforce, re- mained undisturbed. Of such right the article in question. — Greenbow himself describing it as "a declaration of rights," — was not introductory, but declaratory, being merely the mutual recognition of an important part of the universal law of nature and nations, as laid down by Vattel, as proclaimed aloud by every maritime people against the exclusive pre- tensions of the Pope's peninsular favourites, and as admitted with respect to the adjacent portion of the north-west coast, which had been appropriated, though not in any sense discovered, by Russia, by the three claimants themselves expressly, by America and England, and tacitly by Spain But the whole d5 treaty was in iis nature declaratory. The first article involves an admission on the part of Spain, that England had had a right to colonise Nootka Sound ; th'^ third, with a retrospective implication, speaks as to both nations of ^* their fisheries" and " their commerce with the natives of the country ;" and the sixth, which treats of the unoccupied regions at the Southern extremity of the continent, deprives both nations equally of the right of form- ing settlements, but permits them equally to " re- tom" all other rights whatever. . > But, even if annulled by the war, the articles in question were subsequently revived. The thi'-d article returned with the peace, which would neces- sarily, exceptis excipiendis, restore all questions of territory, whether actual or potential, into the status ante helium. The fifth article again came into force under the treaty of 5th July, 1814, by which "all the treaties of commerce," that subsisted "between the *^^wo nations" in 1790, were "ratified and confirmed." Greenhow, indeed, labours to prove, that the arrangement of 1814 referred merely to the trade of Great Britain, as such, and Spain, as such, without regard to the colonies of either kingdom ; but his arguments, being avowedly based on the exclusive character of the commerce of colo- nies in general, and of that of Spanish America in particular, are clearly inapplicable to a provision, which expressly establishes a free trade between D 2 % Ii I 36 either power, and certain colonial settlements of the other. But even if Greenhow's reasoning were as solid as he deemed it, he would be gaining a victory not for Spain, but for England. If the article is in force, then Spain has a right to trade at every Bri- tish port of the disputed territory, with all the advantages of one-sided reciprocity ; if it be not in force, then Spain has no such right of trading, while, as has already been shown, its right of settling under the third article has been reduced within very narrow limits by the existing settlements of England. ; .. ^ , - , t i The treaty of 1814, between Great Britain and the United States, provided " that all countries, places, and possessions whatsoever, taken by either party from the other during or after the war, should be restored without delay." Now, the remarks that have already been made under the head of Settlement with respect to the restitution of Astoria, show that Astoria had rather been ab.'^ndoned than captured. But be this as it may, the treaty of peace required to be effected on the principle of status ante helium ; so that the alleged reservation as to the right of sovereignty, whether made or omitted by England, and whether accepted or re- jected by America, was, under any and every sup- position, merely a work of supererogation. But, even admitting that the restitution necessarily im- plied a recognition of sovereignty, Astoria could carry with it only the Southern side of the lower «nii ■ river, and the Southern branch of the upper waters. At the very most, however, the restitution ac- knowledged in America merely the same privi- lege of colonizing unoccupied territory, which the treaty of 1790 had declared to exist as between Spain and England, — a privilege which was in itself utterly repugnant to a recognition of the dominion of a wilderness, and was in its consequences incom- patible with the duties of England towards Spain. The privilege in question might, so long as it was exercised, carry with it a right of sovereignty ; but, as it could not leave behind it such right, when it was itself allowed to lie dormant, the subsequent abandonment of Astoria took from America all that the treaty of 1814 could ever be supposed to have given it. rv \ -v > '- Of the treaty of 1818, the only applicable article is the third, rendered perpetual by the treaty of 1827, subject, however, to be annulled by either party after a year's notice : — r h r, . > . - . ^ .-, .;*i>'' " III. It is agreed that any country that may be claimed by either party on the north west-coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years from the date of the signature of the present convention, to the vessels, citizens, and subjects of the two powers ; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or state to any part of the said country ; the only as object of the high contracting parties, in that respect, being to prevent disputes and differences among themselves." Greenhow*s summary appears to be pro tanto correct, " that any territory in that section of Ame- rica, claimed by either, should be equally free and open for navigation, trade and settlement, to the citizens and subjects of both." Though thus far the article in question is practically the same as the third article of the treaty of 1790, yet the second meinber o^ ihe sentence appears to involve this re- markable Qj . «^ nee, that settlements of subsequent date are not to carry with them the rights of sove- reignty, inasmuch as they are not to affect the claims of either party. This, however, does not seem to have been the view of the American Go- vernment ; for, in 1827, the " President of the United States," according to Greenhow, " refused to agree to any modification of the terms of the joint occupancy," — the proposed modification on the part of Great Britain having been, " that nei- ther power should assume or exercise any right or sovereignty or dominion over any part of the country during that period, and that no settlement then existing, or which might in future be formed, should ever be adduced by either party in support or furtherance of such claims of sovereignty or do- minion." If the republican interpretation be cor- rect, so much the worse for the Republic, precisely in the proportion in which England has formed more settlements than America. Of the treaty of 1819 the third article draws the boundary between the United States and Mexico and then closes with the following rider : — " 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 said United States all his rights, claims and pretensions to any territories east and north of the said line ; and for himself, his heirs and successors, renounces all claim to the said territories fur ever. t» Whether the treaty of 1790 was in force or not at the date of the last-mentioned compact, the rights of Spain were comparatively insignificant as against England. Under the latter supposition, Spain had lost the argument of contiguity through the Mexican revolu- tion, while it had forfeited the arguments of discovery and settlement partly through its own delay and waiver, and partly through the forestalling activity of its great rival. Under the former supposition of the continued existence of the treaty of 1790, which has already been shewn to be the true one, Spain held only the right of colonizing unoccupied territory under the third article, and under the fifth article the right of trading at the English settlements, — the right of trading not being at all susceptible of transfer, and the right of colonizing amounting, if transferred, to n i! 1 ; i 40 '!:», if"! nothing beyond what England had indirectly acknow- ledged in the restitution of Astoria. It may, moreover, be doubted, whether the one right was more susceptible of transfer than the other. On general grounds one party to a compact, whether public or private, is incompetent to sub- stitute another party in its place. But, even if the ordinary rule were otherwise, it could be enforced only in favour of a substitute, that might be both able and willing to discharge the correlative obligations as well as to enjoy the correlative rights ; and this limitation would be inconsistent with the substitution of any power whatever in a treaty, whose every line viewed Spain in its peculiar relation to the Pacific Ocean and the coasts of the same. Nor in all probability did the parties at the time contemplate any substitution of America for Spain as against any other nation. The provision in ques- tion, be it observed, had not an independent existence, but was merely appended to the article that professed to define the common boundary; and as the language implied that the cession and the renunciation were to be co-extensive, the former could not have force as against England any more than the latter had force in favour of that kingdom. But though the language had been different, reason would have come to the same conclusion, for Spain could not substitute America by the cession without at the same time expressly giving England the benefit of the re^ 41 nunciation. Now, notwithstanding the treaty of 1819, England and Spain continued to occupy the same position with regard to each other ; Spain was still entitled to trade with the English settlements, and to colonise, so far as England was concerned, any unoccupied territory towards the north; and England was still entitled, though America had ceased to be so, to colonise any unoccupied territory between the parallel of 42° and the due range qf the nearest Spanish settlement. - , But there is a convention more decisive in its character than any treaty between foreign competi- tors, the consent of the aborigines themselves. ? Spain has never had, and most probably has ne. r cared for having, any interest in the affections of the natives, while, as between England and America, Greenhow affords testimony, which is as conclusive as it is disinterested. Speaking of the natives, he says, that "the agents of the Hudson's Bay Company take care to keep" them "at enmity with'' the traders of the United States; and in another place he adds, that " the Indians are every- where so tutored and managed by its agents, that they have become the willing slaves of the associa^ tion, and are ready at any time to strike at its ad- versaries." Though, when it comes from such a quarter, the evidence as to the effect is unanswer- able, yet as to the alleged cause, Greenhow must permit the world to take his statement at what it is worth. It is quite possible that the English may i M 42 have won the hearts of the aborigines without any attempt to disparage the Americans i and it is quite possible that the Americans may owe their hatred partly to the rumoured horrors of eastern spoliation and cruelty, and partly to tramontane displays of an unfeeling and insatiable disposition. Moreover, the consent of the natives ought to have the greater weight, as they are confessedly less barbarous than their brethren to the eastward, being more gregarious in their habits, more sedentary in their pursuits, more skilful in defending themselves from the weather, and more economical in providing against want. In fact, this souimest and best of all conventions, if England had nothing else to plead, would be more than a counterpoise for all and every the arguments of Spain and America. lit IP ' I CONCLUSION. To sum up the claims of the Americans and the English under the different heads. Convention gives the whole of the disputed territory to England by a title paramount to all the pretensions of civi- lized jurisprudence, while it gives to America literally nothing, whether in the restitution of As- toria or in the treaty of 1819. Contiguity, even if admissible as a make-weight, runs the line up the Lower Columbia, and between the waters of the two grand branches. Settlement is conclusive in favour of England through the whole length and breadth of the country, while with regard to Ame- rica it results merely in the strongest of all possible waivers, uniform and universal abandonment. Dis- covery is decisive in favour of England as to the Southern Valleys, the Northern Valleys (excepting Bulfinch*s Harbour), and as to the right bank of the Lower Columbia with the basin of the northern branch, while, even if not altogether forfeited by the delay not merely of enforcing the claim, but even of making it, it requires to be liberally construed in order to give in any sense to America what it does not exclusively give to England. England, therefore, will forego much of her equal rights, if she consent to draw the common boundary of the Lower Columbia to the fork, and thence along the height of land that separates the two great branches of that river. But though England (for there are limits even to the noblest magnanimity) may sacrifice her equal rights, yet she cannot consistently sacrifice her ex- clusive claims, any more than America is justified by a generally excusable sensitiveness in urging so unreasonable a demand. Finally, in England the value of the disputed territory is very much underrated. The southern half, it is true, will never be worth much to the Americans, whether as a nation or as individuals ; for Hd only two harbours are hardly good for any- thing ; and it is doubtless a consciousness of this. I -44 I! '•! I ll that prompts Gray's countrymen, even while boast- ing of his discoveries, to covet a footing in defiance of the tenth commandment, on the Strait of Fuca. But the northern half, with its countless nests of natural harbours, is destined to be the ruler of the Pacific ; and of all the colonies there is not one that is so likely to become a congenial nurseling as the screened and serrated coasts of the North-west Archipelago. , v ;' - ' August 7, 1843. ' 'y J.)?;-:/: •^ ' i i, : i '. ^ ,-..^ J I ' ■■ .;■. f i r y . , JtJIi. I- . . 1 ' . i ' . »■' 1; f "k , ; * \^, f^ ''.I It' f r ' . 1 '.'U .1'