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Yvx ] -^o- LONDON: HIUXTKD HY W. M'DOWAI.L, PEMBEI.TOX ROW, CiOl'CJH SUUARE. THE OREGON QUESTION. The public discussion to which the Oregon Ques- tion has been recently subjected in England and in America has already produced one portion, at least, of its usual effects : misapprehensions of mere matters of fact have been cleared away; apocryphal accounts of the geography of the country, and of the history of its discovery, which were current in earlier periods of the dispute, have been rejected, while the data on which the definitive settlement of the controversy must, in any event, be founded, are assuming at length a tolerably fixed and authentic form. It is now no longer disputed that the continuation of the great continent in a north-westerly direction from the Mexican provinces on the Pacific, and the general outline of the coast, were first ascertained by the Spaniards ; the more exact configuration of several portions of it, or their isolation from the mainland, being subsequently determined by British or Amer- ican traders, in their transient visits for purposes of commerce. One succeeded in sailing round Queen Charlotte's Island, another penetrated several leagues into the Straits of Fuca, a third was fortunate enough to succeed in running his ship over the bar at the enibouchure of the principal river, until at A 2 l-% ^. ■ M, ,■- \l last Vancouver laid down a complete and accurate chart of the wliole coast ; and overland expeditions from the United States and from Canada threw a light n])on the physical geography of the interior. But if we turn from these, the mere facts of the case, to the legal conclusions which are sought to be drawn from them, — if we take a single step towards the inquiry, how far these data are decisive of the rights of the two contending governments, — we find ourselves at once enga<»-ed in a conflict of the most ir- reconcilable dogmas; every one of which is neverthe- less propounded by its author, as " an undisputed principle of International Law." Thus, the British government insists upon the principle, that " the earth is the common inheritance of mankind, of which each individual, and each na- tion, is entitled to appropriate a share by Occupancy and Cidfivation^'.'' On the other hand, the govern- ment of the United States, (regardless of the incon- sistency), besides claiming whatever it may appear to be entitled to on the footing of Occupation, sets up one claim to the territory on the ground of Discovery, and another on the ground of Contiguiti/ to Louisiana. If we turn to the writers on the question at home, we find almost every one bringing forward some theorem or verbal formula of his own, which, however incon- * These are tlio terms in which Dr. Wheaton, in his '* Ele- ments of International Law," enmiciatcs the claims made by the British government m the Nootka negotiations with Spain. They were the same in the time of Queen Elizabeth, and remain the same now. f 5 sisteii^ it may be with those of all his predecessors, or with the position taken by the dii)loniatists of his own country, he seems to suppose will be sufficiently accredited as "an undisputed principle of International Law," upon the mere guarantee of his private asser- tion. Accordingly, we read of titles by Dlscoverfj, which are either {!) perfect or (2) imperfect, (3) in favour of the individual discoverer or (4) in favour of the dis- coverer's sovereign : the two latter being made more- ov(^r dependent on other additional circumstances, such as, whether the discoverer held a commission from his sovereign, or whether his sovereign thinks proper to accept the territory discovered. There is also the title by ContujnHy; but what contiguity means, or what are the limitations to be annexed to it, no two persons are agreed : this title moreover, it appears, may also be either ;?c?/^c^ or imperfect, though what the value of an imperfect title is, needs more ex- planation than has been given. Lastly, there is the title by Prescription, which, as applied to a territory where, by the hypothesis, no sort of right has ever yet been exercised, is not a little unsatisfactory. And the result of the whole is, that the claim of Great Britain is pronounced by the " Foreign Quarterly Review " to be perfect on all of these grounds, and by the " Edinburgh " to be imperfect upon each of them. In this state of the controversy, it is obvious that the bare assertion of this or that proposition, as a rule of International Law, is no longer of any avail; 6 for there is no conceivable dogma, bearing upon the question at issue, of which both the affirmative and the negative have not been asserted once and again. If, therefore, we wouhl help the dispute to a peace- able conclusion, it will be necessary to pass from assertion to proof, establishing the truth from the concurrent testimony of the recognised writers on International Law. By these means, and by these alone, the public in either country can be enabled to form for themselves an opinion entitled to the charac- ter of a rational conviction. For the people of Great Britain, on the one hand, have to justify to their con- sciences the extreme measures that may become ne- cessary for the vindication of their rights. The people of the United States, on the other hand, have to satisfy themselves, that, in yielding in the present instance to the claims of Great Britain, they are making no concession to an arbitrary demand, but to the principles of that system to which all civi- lised nations have given their assent, bearing in mind the eloquent injunction of their own Chancellor, contained in his celebrated " Commentaries on American Law," viz. that ^' no civilised iiation, that does 7iot arrogantly set all ordinary/ law and justice at defiance^ will ever venture to disregard the uniform sense of the established writers on International Law^ To collect, and state in their own words, the gen- eral sense of all the established writers on the par- ticular questions in dispute in the Oregon Controversy, is the object of the following pages. But we shall proceed, in the first place, to point out what those questions are. ?f upon the .tivc and id again, a pcace- ass from from the L'iters on by these labled to i charac- of Great leir con- jome ne- s. The nd, have present ;hey are md, but all civi- in mind mcellor, ies on ow, that i justice uniform LawT :he gen- he par- roversy, ve shall i those 9. It is assorted, then, ]>y England, to be a general principle of tlio Law of Nations, that " the earth is the common iuheritanee of mankind, of which each individual and each nation is entitled to apprcpriate a sliare by Occupancy and CuHicai'um'' It is further assertc^d, as a nuitter of fact, that her subjects have been proceeding peaccpbly from time to time, since the commencement of the present century, with her sanction, and without dispossessing any former set- tler, to Occupy a considerable portion of the Oregon Territory, thereby acquiring valuable territorial rights ; and, that, such being the case, it is the solemn and inalienable duty of the British govern- ment, to protect and assist its subjects in the main- tenance of those rights against the aggression of any foreign power; and to reserve the power of adding those settlements to its own domains at any period it may think proper; conceding, of course, a similar power to the government of the United States, in regard to any portion of the territory that may be found to be in the occupation of their citizens under similar circumstances. In opposition to this claim, the government of the United States, passing over the undoubted fact of British occupation, asserts itself to have been pre- viously entitled to the Eminent Domain of the coun- try, to a greater or less extent, (for to what extent has never yet been very exactly defined), but, at all events, to a considerable portion of the territory now in the possession of the British. I \> 8 To lay II foundation for this claim, the Government of the United States falls back upon the voyages of discovery made by the old Spanish navigators, to the benefit of which it alleges itself to have become en- titled by treaty ; or, if that should be considered too Infirm a basis for such a pretension, then it insists on the discoveries made by its own citizens, and parti- cularly on the fact of Gray, in 1 71)2, having been the first to cross the bar of tlici principal river; and also upon the over-land expedition of Lewis and Clarke, in 1805, from the Rocky Mountains to the sea. Or, if the dogma of Discovni/Bhonhl fail, then it is contended that Oregon ought to be considered as Having been French territory by virtue of its Contif/fufy to Louisi- ana, and as having consequently passed to the United States by the treaty of 1803. Or, if both Discover'?/ and Contif/fdtf/ should fail, then, once more changing the line of argument, it takes up the principle of Occu- patiou; but, not content with the application to Its own case of this principle as enunciated by Great Britain, (which, as we have seen, would entitle it to take its stand on so much of the territory as Ameri- can citizens may be found to be now actually in possession of), it asserts a title to the Eminent Domain of every district in which any of its citizens may at any time heretofore have been temporarily settled, notwithstanding that such settlements may have been made without knowledge or authority of the Government, and have passed by regular transfer into the hands of foreigners. From this statement of the claims of the two f I- 1 ;^ornment 'jiigcs of 's, to the 3om(; en- ored too isists on 1(1 parti- bcen the and also larke, in Or, if ntended iig been Lonisi- ! United hanging )f Occu- 11 to Its ^ Great tie it to Ameri- lally in iniinent citizens )orarily ts may )rity of ;ransfer ie two %- countries, it Avill be a|>j)aront tliat there is a conflict between them upon no h'ss thfin tJircc Questions of International L;iw : — \st The (jucstion, whether the mere />/.vro/.'tTj/ of a vacant country, unaccompanied by set- th'm<'nt, ^ives the discoverer (or the disco- verer's sovereign) a right to exchidc other persons subsequently coming to occupy. 2))(l/y. The question of the limitation, in a wider or a narrower sense, of the phrase " Conti- jINffj/ r or, in other words, of the extent of E)>ru'(iu to be attached to a territorial ac- quisition in the midst of an otherwise un- occiqied region. ;3;v////. Th'^ (pu'stion of tlie conditions under which the right of Enuncnt Ihnnmn of the Mother Country attaches to tl: settlements of her subjects in unoccupied territory, so as to render her acquiescence in a transfer of their territorial acquisitions to foreigners essential to the validity of the title of the latter or of their sovereii):n. We propose to disc^iss these three questions in their order; but the affirmative of the proposition in- volved in the first cpicstion, maintained by the United States, and which puts forward the right of the first mere Discoverer in opposition to the right of the first industrious Occupier, is so important in its conse- quences, and proceeds upon so serious a perversion of several elementary ])rinciples of Law, that we shall feel ourselves justified in entering into it at greater 10 i \ length than the others, introducing likewise the judg- ments passed upon it by the established authorities, with a short review of the fundamental considerations upon which publicists have agreed to erect this por- tion of the structure of International Law. The origin of the right of Territorial Property, whether as regards states or individuals, is usually explained and ilhistrated in a general way, as fol- lows : — The Earth and all that it contains are na- turally and necessarily presumed to have been des- tined by the Creator for the use of Man : and this use, or the right to it, was originally common to all ; but, as the members of the human family multiplied, it was found to be for the benefit of all that such land as was required to be occupied should be occupied in severalty, rather than in common. This was the origin and justification of separate and ex- clusive property throughout the world ; and, in order to avoid the disputes which would be likely to arise between several persons who might be desirous of appropriating the same tract, this rule (also of universal prevalence) was adopted ; viz. that he who was the first to make a beneficial use of the land should be allowed to continue it, to the exclusion of those that came after. If any man, therefore, entertained the wish, or intention, not to make a beneficial use of a particular district himself, but merely to exclude others, his case obviously did not come within the policy of the rule, which was to encourage the most beneficial possible use of the land. Again, if one man entertained the 11 lejudg- lorities, orations lis por- •operty, usually as fol- ire na- m (les- id this to all ; :iplied, t such lid be This nd ex- order ) arise 'sirous Iso of at he e land ion of 'efore, ake a r, but r did ^vhich e use I the wish, or intention, to make a beneficial use of a particular district, and even promulgated his inten- tion to every one so to do; but another, entertaining the same wish and intention, should proceed before the first had put his intention into practice, actually to make a beneficial use of that district, it is equally clear that the rule would favour the latter rather than the former ; for the object of the rule Vv^as actual use of the land, and there being obviously no certainty that the i?itentiou, however loudly expressed, would ever issue in the fact, the fact accomplished was allowed to deserve the better title. This rule has been acknow- ledged in all systems of Mimicipal Law* to have been the true and only basis of proprietorial rights be- tween individual men as they existed upon the face of the earth anterior to the introduction of municipal legislation. Now the condition of individual men in that phase of their existence is for the present pur- pose precisely analogous to the actual condition of independent sovereign powers. It w^ould therefore be a natural conclusion, that the right to territory, as regards sovereign states also, should remain a right in common, and not in severalty, until an actual hene- jic'ial occupation was established by some one state ; and that of those that might actually proceed to establish that beneficial occupation, the one that was first in order of time w^ould have the better ridit. And, accordingly, we shall find that Occupation, as * Digest, 41. 1. 3.: Quod nullius est, id ratione natural! occu- panti conceditur. And see lb. 41. 2. 1.; Black. Comm., book ii, chap. 16, and notes. 12 i ' : distinguished from mere wish or intention, or the barren exercise of some bodily faculty, as of mere sight or original Discovery, is the sine qua non of all the established writers on the acquisition oi Interna- tional rights of property in vacant countries. And the reader shall now be put into a position to judge for himself of the truth of this assertion. Grotius, de Jure Belli et Pacis. — " Thus we may see what was the original of the Right of Property : for it was derived, not from any mere volition or act of the mind [non animi actu solo], since in that case one man could not possibly know what others had designed to appropriate to themselves, that he might abstain from it, and, besides, several might have had a mind to the same thing at the same time ; but it resulted (in virtue of a certain compact among man- kind) either from actual division or from occupation [occupatio] .... For the community of goods being in progress of time found to be inconvenient, and no actual division of all things being yet made, it must be taken to have been universally agreed, that whatso- ever any man should have first proceeded to occupy , that should be allowed to remain exclusively his own [ut quod quisque occupassety id proprium haberet] *." And, again ; '* In order to acquire the domain, it is necessary there should be a corporeal possession [cor- poralisf qucedam possessio] \r x\ 1 r * Lib. ii, cap. 2, s. 5. See also lib. ii, cap. o, as. 1, 4. t Corporalis; id est, ipsum ut corpus in nostra potestate sit. (Note by Gronovius, ad loc.) X Lib. ii, rap. 8, s. 3. n, or the of mere lion of all f Interna' osition to on. 3 we may Property : on or act that case hers had he might bave had i ; but it >ng man- 'cupation ►ds being: , and no it must whatso- ' occupy f his own eret] * " ain, it is 9?? [cor- estate sit. 13 Piifendorf, de Jure Naturae et Gentium. — " This rule, therefore, for settling the disputes between two claimants, lias been agreed upon ; viz. that the title to the territory shall vest in him who is the first to oc- cupy it [prime occupatori], 7iot in him ivho happens first to come in sight of it [non ei, qui prhnum in con- spectum venit] *." Again : " We are then properly said to have occu- pied, when we have taketi actual possession [quando possessionem adprehendimus] ; but the mere seeing a thing, or the knowing where it is to be found, will confer no title at all [vidisse autem tantum, aut scire ubi quid sit, nondum ad possessionem sufficere judi- catur] f ." Bynkershoek, de Dominio Maris. — " A state can- not stretch the limits of its domain beyond the reach of its actual power of bodily detention and restraint [ultra detentionem corporaltm'] |." And, again : " Besides the mere will to exercise control, there must be actual control physically exercised ^." Burlamaqui, Principes. — " The dominion over va- cant countries is to be acquired by taki7ic/ possession of them||." Vattel, Droit des Gens.— "All mankind have an equal right to things that have not yet fallen into * Lib. iv, cap. 4, s. 5. See also lb., s. 9. t Lib. iv, cap. 6, s. 8. See also lb., ss. 2, 3. X lb., cap. 1. § Opera omnia, fol. edit., vol. ii, p. 136: Praeter animum, pos- sessionem desidero. II Part iv, chap. 9, s. G. See also chap, 8, s. 4. '!i; ' i 1 i 14 the separate possession of any one : such things be- long to the first occupant [jpremier occiipanf]. When, therefore, ^ nation finds a country uninhabited and without an owner, it may lawfully appropriate it ; and, after it has sufficiently made known its will in this respect, it cannot be lawfully deprived of it by any other nation. Thus navigators, going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation ; and the title thus acquired is generally respected, provided that a real possession has presently followed [pourvu qu'une possession reelle I'ait suivi de pres] *." And, again : " Nature, having intended the whole earth to supply the wants of the general family of mankind, gives a nation tlie right of appropriating particular districts to itself, only for the purpose of its making some real nse of them, and not for the purpose of hindering other nations from deriving advantage from them. The law of nations, therefore, will not acknowledge the proprietorial or sovereign right of a nation over any uninhabited countries, except those which it has really and in point of fact occupied [occu- pes reellement et de fait], in which it has formed some settlement, or of which it makes sojne acfnal use. In fact, when navigators have met with desert countries, in which those of other nations had, in their transient visits, erected some monument to shew their havin^r * Livre i, chap. 18, s. 207. ^ 15 ings be- When, ted and iate it ; will in 3f it by voyages m their ands in 1 in the uired is non has reelle J whole mily of )riating ^e of its purpose vantage vill not ;ht of a t those [occu- d some ^e. In mtries, ansient having til. n possession of them, thoy have paid as little re- gard to that empty ceremony [vaine ceremonie], as to the regulation of the Popes, who divided a great por- tion of the world between the crowns of Spain and Portugal*." Von Martens, Precis du Droit des Gens Moderne de I'Europ?. — "Assuming occupation, therefore, to be phypically possible, it is further necessary that it should take place in point of fact [qu'elle ait lieu effectivement], and that the act of taking possession should accompany the manifestation of a design of appropriating the object. The simple declaration of the will of a nation is no more sufficient to impose upon others the duty of abstaining from the use or occupation of the object in question, than a papal grant, or than a private agreement between two (other) particular claimants. The bare fact of hav- ing been the first to discover or visit an island, &c., which is then forthwith abandoned again, and where- on no permanent ! idications remain of the possession and of the declaration of the discoverer's claim, is admitted by all nations, without opposition or dis- sent, to be insufficient to found any right : and the erection of such things as crosses, landmarks, inscrip- tions, &c., has been often denied, and with good rea- son, both by sovereigns and theoretical writers, to be effectual for acquiring or maintaining an exclusive title to a country of which no real use is made f." Pinkeiro Ferreira, note ad loc, (in his edition of * Liv. i, s. 20S. t Liv. ii, chap, i, s. 37. 1() 1 1 Martens: Paris, 1831). — "The right of property among nations is derived from the same principle as the right of property among individuals anterior to all social compact; . . . and certain acts there are, w^hich, inde- pendent of all social compact or express stipulation, confer a right of territorial property ; namely, posses- sion and user [possession et I'usage]. Thus it is, that a nation, upon discovering a country previously unoccupied, if it proceeds to make settleinents or esta- blishments there, either for the purpose of agriculture or of any other branch of industry, acquires, by that bare act the property therein*." Again, the same author, in his note on Vattel, liv. i, c. 18: — " When the question is raised, whether such and such a territory belongs or not to such and such a nation, the point to decide is, not whether that par- ticular nation has the wantonness or caprice to forbid the approach of other nations to it, (having itself all the while no intention of turning it to its own advan- tage) ; but the point to decide is this : Has the na- tion put the territory to any profitahle use ? Is it in possession, or does it exercise the ordinary powers of possession ? Is it engaged in any measures for the development of its natural resources ? If nothing of this sort has been done, the question is at end. It would be as weak to respect such a pretension, as it is preposterous to put it forward f ." .i * Martens, Precis, edit. Paris, 1831, avec des Notes par Pin- keiro Ferreira, ancien ministre des affaires etrangeres en Portugal, tome i, p. 379, note. t Vattel, edit. Paris, tome iii, p. 200. J. >N \\ ■ .: y among ;he right 11 social 3I1, inde- )ulatioii, , posses- IB it is, eviously or esta- iculture by that fctel, liv. iier such dsuch a iiat par- forbid tself all 1 advan- the na- Is it in >wers of for the thing of nd. It )n, as it par Pill- Portugal, m > K 17 KliiUr, Droit des Gens Moderno de I'Europe, 1831: — "A state may acquire property in things which be- long to nobody [res nullius] by occupation; in things which ])elon<'- to another, bv contract In order, liowever, that the occupation should be valid and effectual, the object itself ought, 1, to be such as is naturally susceptible of an exclusive proprietorial right ; 2. It ought to belong to nobody ; 3. The state ought to have the deliberate intention of acquiring property in it ; and, 4, ought, moreover, to take actual possession of it, that is to say, ought to have it entirely at its own disposal and within its ow)i physical con- trol [entierement a sa disposition, et dans son pou- voir physique]*." And, again: " By lawful occupation the right is first acquired ; by continuous possession it is maintained." And, again: " In order to acquire property in a ^liing by the means of occupation, it is not enough merely to entertain the design of acquir- ing it, or to give ourselves the credit of possession by a mere process of the mind. Even a public announce- ment of oui design to occupy, made before occupation actually efftcted by another, will not suffice to ex- clude the latter f. It is necessary that we should, moreover, have been in point of fact the first to occupy [il faut qu'on ait reellement occupe le premier]; and it is by this means alone, by the acquisition thus made of an exclusive right over the particular object, * Tome i, s. 12.0. t For instance, the bare discoverv of an island will not suffice. (Kluber). B 18 m ^ il' i^: I: ^1. M: );■ that wc can impose upon the rest of the world an ob- ligation to abstain from it *." Jfcfffer, International Law of modern Europe f." — " The acquisition by a state of new territory can only be effected, according to the rule of International Law, by one of the following means : — 1. By treaty ; 2. By natural accretion ; 3. By occupation " 3. The acquisition of territory by the means of occupation is subject to these restrictions : — 1. It obtains only in the case of things which are by their natural condition susceptible of ex- clusive possession. 2. It requires a deliberate intention on the part of the occupying state to hold the territory in per- manent subjection to its own authority, 3. It must he accompanied hy an actual taking of possession, whereby the design of a continuing appropriation is demonstrated, and wherewith the arrangements or institutions requisite for the ex- ercise of the functions of exclusive sovereignty are to be connected. On the other hand, mere verbal declarations or manifestoes, and transient inanimate tokens of an intended appropriation, are altogether insufficient for any legal purpose \. Oppenheim, System of International Law^. — " The * Kliiber, torn, i, s. 126. f Das Europiiische Volkcrrecht der Gogenwart, by A. W. Heff- ter, Professor of LriW at the University of Berlin, &c, : 1844. X Sect. 70. See also s. G9, n. (1), on the r.ecessity of physical possession. § System des Volkerrechts: Frankfort, 1845. 1 s* • 1 . t ; !! W If) d an ob- Lirope f ." toiy can national treaty ; • • • leans of hich are of ex- ! part of ' in per- iking of itinuing fvitli the the ex- 3reignty (1, mere ransient Ho)i, are 3se I. -" The W. Heff- ' physical vs -^ « acquisition of new territory may be eii'ected either by ot'Cffpfttion or by treaty ; but originally, and in the first instance, by that which is the only duly recog- nised and effectual method, conformable alike to the law of nature and of nations, by (ivciipatiun, not hi/ mere discoreri/, hut In/ aetual tuklmf ofjmssession, or })y conquest [nicht durch die blosse Entdeckung, sondern durch Einnahme, Eroberung]'^." These quotations, it is presumed, are sufficient to warrant the enunciation of the two following propo- sitions, as expressing " the general sense of the es- tablished writers on International I^aw": — \st. That the Discovery of territory, whether made by a private individual or an officer in the ser- vice of an independent state, if unaccompanied by actual occupation or user, gives no right to exclude subsequent settlers. 2ndh/. That actual Occupation confers an exclusive title upon tho first actual occupant. The first proposition destroys at once the preten- sions of the United States, founded on the proceed- ings of the Spanish navigators, and of their own citizens. Grey, Lewis, and Clarke ; and the country must, therefore, be treated as having been, at the con- clusion of the expedition of the latter, as perfectly free and open to settlement as if it had still remained a terra incognita. And the question comes to this, who were the first actual occupants of Oregon, and have they maintained * Oppejiheim, chap, vii, s. 8. See also s. 4. B 2 20 l\ I'iJ •it (' their occupation? Now, in the year 1800, the Britisli fur traders made tlieir appearance in the northern portion of the territory ; and this is the era of the commencement of the first fixed, methodical, and continuous occupation of the country, — the first actual use made of it,— tlu^ first regularly conducted attempt to dcvelope its natural resources. The Eng- lish, indeed, as well as the Spaniards, Russians, and Americans, had,we know, visited the coasts long before, for trading purposes ; but there is no evidence that any nefilenimt, even of the most trifling kind, was ever made in Oregon, till Mears, the Englishman, built his huts, in 1788, on a small spot of land in Nootka Sound. But this was a settlement of too trifling and temporary a character to form the foundation of any claim of proprietorial right at the present day. Mears was forcibly dispossessed by the Spaniards, who built a fort, and held military occupation for some months. But their settlement was wrongful in the first instance, and was on that ground aban- doned ; and they have never subsequently occupied any place on the coast north of San Francisco. In the year 1811 some trading posts were esta- blished on the lower portion of the river Oregon (to which the British fur traders of the North-west Com- pany had not yet extended their operations) by the partners and servants (British subjects and United States citizens combined) of the Pacific Fur Company. The posts thus occupied were sold in 1813 to the British North-west Company, who thus acquired an hit ^00, the I in tlie the em ;liodical, the first ndiicted lie Eiifif- ans, and ^ before, lice that nd, was m, built Nootka triflinff ation of ni day. aniards, kion for ngful in [ aban- cciipied 0. esta- goii (to it Com- by the United nipany. to the ired an 21 oceupatory footing m the southern portion of the territory, down to the mouth of tlie river Oregon. Of tlie present state of British occupation some i(le:i mav be j^ained from the following details: — Fort Cifrfllr, the principal establishment of the Hudson's \^[{^' Company in the basin of the north branch of i\\() Oregon River, is thus described by Mr. S[)aulding, an American missionary : — "It stands on a small plain, of iJOOO or 13000 acres, said to be the only arable land on the Columbia, above Vancouver. Tliere are one or two barns, a black- smith's shop, a good flour-mill, several houses for labourers, and good buildings for the gentlemen in charge. Mr. M' Donald raises this year (1837) about 3500 bushels of different grains, such as wheat, peas, barley, oats, corn, buckwheat, &c., and as many po- tatoes ; has eight head of cattle and one hundred hogs. This ])0st furnishes supplies of provisions for a great many forts, north, south, and west*". Other posts of the company in the upper basin of the Oregon River, are Fort W^xllawalla, or Nez- per^es, at the confluence of the northern and south- ern branches ; Fort Okinagan, at the entrance of the Okinagan River into the north branch ; and two others, on the Flatbow and Flathead rivers. On the southern shore of Admiralty Inlet, which is one of the few districts in the territory adapted for agriculture, there is a large agricultural and pastoral settlement of British subjects. * Quoted ill Farnhani's " Rocky Mountains," vol. ii, p. 233. r " >i :J .^ 22 In tlu; coast district, fjirtlicr to the north, the prin- ciiKil settlements of the lludsoirs Bay Company aro the folio vvinix: — Forf. LfUKileu at the entrance of Frazer's River into the eastern e.\iremity of the Strait of Fuca, in latitude 49" 25' ; Foi't M'LomjhUn, on Milhank Sound, in latitude 52"; and Fmi Simpson, on Dundas island, in latitudt^ 54" 550'; Commodore Wilkes, of the United States navy, in his official report on the country made inl(S43,exi)resseshis o[)inion,that there is "no j)lace north of Frazer's River where a new settlement could be formed that should pay its own expenses*;" a tolerably clear admission, that this ])ortion of the country, at all events, is fully occupied by the Hudson's Bay Com})any. And, taking these several posts in connexion f with the large settlement at Nasqually, the command of the whole Strait of Fuca becomes obviously essential to maintaining the independence of the Company ; and, indeed, the strait itself answers to the narrowest possible defi- nition of a close sea. In the upper basin of the Frazcr River are Fort Frazer\ founded in 180G, and several others, — Fw't Alcd'andria, Fort CItilcotia, Fort Georffe, Fort St. Janu's, Fort Thoinpson, &c. In the district drained bv the southern branch of the Oregon River are Forts lioise and Hall, the head- * Farnliam, vol. ii, Appendix. + The traffic l^ctween the different coast stations of the com- pany, and with otlier places on the continent or the adjacent islands, where they have no fixed posts, is maintained by ships belonging to the company, of which there are sc\eral, as well steamers as sailing vessels, appropriated to this service. 1 :lie prin- [)aiiy are •anco of le Strait f//ilin, oil Simpson, nmodore al report lion, that re a new ' its own hat this occupied ng these ittlcnient e Strait intaining ieed, the ible defi- are Fo7't •s, F07't Fort St. Dranch of ;he hcad- f the com- w. adjacent ?d by ships ral, as well cjuartors of the huntiiiL^ ])arti('S in the service of the Hudson's ]i;iv Conipnuv. At tlu* mouth of tlic Orem)n is l''oit (i<'()i'o;e, !ir(|uir(Ml inl8KJ. Unt Fort l^tiHcoti- ?rr i« tlie "principal (vstiiblislinient of the Hudson's Bay Coin])any west of tiie Rocky Mountains; situat'Hl near tlie north hank of the Orc^gon, at the distance of H2 mikvs in a direct line from its moutlij and ahout 120 miles followiui; the course of the stream. The Jort is simply a hirge square i)icketed inclosure, containing houses for the residence of the chief factor, traders, clerks, and upper servants of the company; magazines for the furs and goods, and workshops of various kinds*." " Six hundred yards helow the Jmi, and on the hanks of the rivoj*, is a, village of Hfty-three houses, in which live the company's servants ; and the Van- couver Fai-m, stretching up and down the river, — 3000 acres, fenced into beautiful fiehls, and sprinkled with dairy-houses and herdsmen's and shej)herds' cottages f ." The following, on the other hand, is the description of the fate of American occupation, given by an official writer of that government: — " From 1813 to 1823," says Mr. Greenhow, "few, if any, American citizens were employed in the countries west of the I^ocky Mountains; and ten years more elapsed before any settlement was formed or even at- tem])ted bv them in that part of the world. . . . The Americans had no settlements of any "kind, and their * Greenhow. p. .'M. t Faniham, vol. ii. 'M 1(11.1 24 \\\ ■M Ji government exercised no jurisdiction whatsoever west of the Rocky Mountains." In other words, so late as the year 1833, the Americans had no territorial rights in Oregon. But, in the meantime, so assidu- ously had the proceedings of the British been con- ducted, that in the year 1818, according to the same author, " the North-ivest Company held the whole trade of the Cohunhla countrijr and from that time to this their occupation has been becoming more prevalent and pervading. It will be proper, however, to enter a little more at length into the question of the character and legal sufficiency of the occupation of these regions on the part of the British. As respects the character and extent of the occu- pation required by the Law of Nations, we have al- ready seen that the one thing necessary is, that a beneficial use should be made of the eountry\ and there is, of course, no particular description of occupation {ed\ (jr. agricultural) required by the Law of Nations. " It is competent for any person to proceed to take possession of land for the purpose of exercising there any sudi branch of industry as may be calculated for his private interests The establishment of the occupant may be ' soit d'agriculture, soit d'une autre branche d'industrie.' (P. Ferreira)." And si- milarly Vattel declares the pastoral occupation of the Arabs sufficient to entitle them to maintain ex- clusive possession of the regions iii which they dwell. " Si les Arabes pasteurs voulaient cultiver soigneuse- ment la terre, un moindre espace pourrait leur suffire. i I 25 er west so late •ritorial assidu- Dn con- le same le trade to this •evalent le more id legal on the e occu- lave al- that a id there upation Nations, to take ig there ited for ment of t d'une And si- ition of bain ex- f dwell, gneuse- L" suffire. ,SK 1 •I 1 -if Cependant aucune autre nation n'est en droit de les resserrer, a moins qu'elle ne manqucU absohunent de terre; car enfin ils possedent leur pays; ils s'en servant a h^ur maniere ; ils en tircnt un usage conveiia- ble a leur genre de vie ; sur lequel ils ne resolvent la loi de personne*." Agreeably to this rule, the North American Indians would have been entitled to have excluded the British fur-traders from their hunting- grounds ; and not having done so, the latter must be considered as having been admitted to a joint occu- pation of the territory, and thus to have beco iie in- vested with a similar right of excluding strangers from, such portions of the country as their own in- dustrial operations pervade. Now it is well known, that, with the exception of a compaiatively small district in the south-western corner of Oregon, the territory is of no value ex- cept for the furs to be obtained in hunting. The country, in a w^ord, is in all its principal features analogous to the regions east of the Rocky Moun- tains, of which the British fur companies had long previously been in possession ; and on their arrival in Oregon, in the year 180G, they proceeded at once to organise there a similar system of occupation. The fur-bearing animals vere the only valuable products of the country, aim these they proceeded at once to monopolise ; and, in the systematic and strictly en- forced preservation and periodical hunting of tliese animals in one district after another, and in the con- * Vattel, Droit des Gens, liv. ii, s. 97. s. 70, 11. (2). And see Ilcffter, 20 ::?! trol required and exercised for these purposes over the native population throughout the territory, must be recojrnised a sufficient assertion and exercise of proprietorial right, in fact being the only one of which such regions are susceptible, the best, and indeed only method of developing and appropriating its na- tural resources. " The furs are obtained partly by hunters and trappers in the regular service of the company, but chiefly by trade v^ith the Indians, who take the animals." " The company at the same tim.e never allow their territory to be overtrapped. If the annual return from any well trapped district be less in any year than formerly, they order a less number still to be taken, until the beaver and other fur-bear- ing animals have time to increase*." " The furs thus obtained are sent at stated periods to one of the great depositories, either on the Atlantic or Pacific, whence they are carried to London in the vessels of the com- pany. The goods required for trade and for the sup- ply of the forts are received in the same manner ; the interior transportation being performed almost en- tirely in boats on the rivers and lakes, between which the articles are borne on the backs of the vojjageiirs, or boatmen f ." " In the treatment of the aborigines of the countries under its control, the Hu<]son Bay Company appears to have admirably combined and reconciled policy with humanity." " Schools '!3 i li * Fiiniliam, vol. ii. -f '' Gt ods are transported across the Continent from the mouth of the Cohimbia to Hudson Bay, or to Montreal, and vice versa, almost entirely by water." (Greenhow, p. 37). iV\ 1 >es over Y, must rcise of f which indeed its na- irtly by of the ns, who ne time If the be less number ir-bear- irs thus le great whence le com- :he sup- ler ; the lost en- 1 which yageiirs, origines on Bay led and Schools he mouth t'ice versa, t 27 for the instruction of the native children are estab- lished at all the principal trading; posts, each of which also contains an h()S})ital for sick Indians, and offers eniploynient for those who are disposed to work whilst hunting cannot be carried on. Missionaries are encouraged to endeavour to convert them to Christianity, and to induce them to adopt the usage of civilised life, so far as mav be consistent with the nature of the labours required for their sui)port ; and attempts are mr.de, at great expense, to collect the Indians in A^illages, on tracts where the climate and soil are most favourable for agriculture .... and the prohibition to supply these people with ardent spirits appears to be rigidly enforced By the sys- tem above described, the natural shvness and distrust of the savajics have been in a oreat measure removed. .... The dcpcndrncc of the Imliam upon the <'ompanij 7s^ at the same time, rendered entire and absolnfe ; for, having abandoned the use of all their former arms, hunting and fisliing implements, and clothes, they can no longer subsist without the guns, ammunition, fish- hooks, blankets, and otlier similar articles, which they receive only from the British traders." It would be difficult to point out any European settle- ment on the face of the globe to which so perfect and so honourable a title has been acquired. Of its sufficiency, as res]>ects the Law of Nations, an unexceptionable ])ractical instance is afforded by the history of the Russian settlenuMits on the same coast to the north of the 54th parallel, between the years 1704 and 1824. In the former year the most southerly of the Russian 28 W •i' •1 ! ■It t settlements was ascertained by Vancouver to lie be- yond the 59th parallel : in the latter year their oc- cupation had extended down as far as the 54th. Thus we have an instance where a species of occu- pation precisely similar in its character to that of the British fur companies, in similar regions, for the space of thirty years, was admitted by the United States, as well as by Great Britain*, to be sufficient to confer a territorial right upon the occupiers. By the application of the same rule, we are entitled to claim, on the part of Great Britain, the whole coast of Oregon north of the mouth of the Oregon River, including the whole basin of tlie Frazer River, and the basin of the north or main branch of the Oregon River; /?>?• within this portion of Oregon^ the con- trol and appropriation of the ivhole natural resources of the country (such as they are) have been maintained Civclusiveli/ hi) the British companies for a still longer period. We therefore pass to the southern portion of Ore- gon. The examination of the respective pretensions of the two countries to territorial rights (in the basin of the Saptiu) introduces the second of the three great questions at issue in the present controversy, viz. the claim made to the whole of the portionf of Oregon on the part of the United States, as having :' s * By the United States, on the 20th of April, 1824; by Great Britain, on the 20th of February, 1820. t The territory to the north would, if the dogma of contiguity were the true one, of course belong to Great Britain by reason of its geographical position. n 20 lie be- their oc- le 54th. of occu- at of the for the ; United sufficient ers. By ititled to )le coast )n River, iver, and 3 Oregon the con- resources aintained ill longer n of Ore- etensions the basin he three itroversy, irtionf of LS having 1; by Great f contiguity ly reason of formed part of Louisiana, or as having necessarily be- longed to the owners of Louisiana, taking that word in its old signification as tlie basin of the Missouri and Mississippi. We have therefore to ascertain, whether, conformable to " the general sense of the established writers," a territory geographically si- tuated as Oregon is, will, by mere force of its geo- graphical situation, belong to the state which has acquired the proprietorial right to a country situated as is Louisiana. Now the geographical facts involved in this ques- tion are shortly these : that the two countries are united (since that is the phrase) by a vast range of mountains, clothed w^th perpetuivl snow, and with barren wildernesses on either side, which form an interval of a thousand miles* between the eastern and western cultivation. The caravans of emigrants who undertake the passage take provisions for six months, and many of them die of starvation on the way. If, therefore, there really is any rule of Inter- national Law, which, under such circumstances as these, is decisive in favour of the United States, that rule must at all events be admitted to be, in a prac- tical point of view, ridiculous and injurious. Again, it has so happened that the government of the United States, in her diplomatic communications with Spain in 1819, laid down the following rule on this very subject of contiguity : — " That, when any European nation takes possession of any extent of * This is the distance between the westernmost settlement in the United States and the easternmost in Oregon. (Greenhow\ 30 I': ri ,,1 ill ' if'i t '■: i :i1 M sea-coast, that possession is understood as extending into the interior country, to tJw sources of the rivers emptyinfi ivithin that coast, to all their branches, £,nd the countries tliey cover : and to give a right in ex- chision of all other nations to the same." Now it is at once obvious that these limits, which no one will suspect the government of the United States of lay- ing down with any undue strictness, and of which the latitude is indeed extravagant enough, will rigidly exclude Oregon xrom Louisiana, and make the Rocky Mountains the extreme western boundary of the latter. The diplomacv of the United States is there- fore between the two horns of a dilemma, of which the one is the principle of law it maintained against Spain in 1819, and the other the totally in- consistent principle it is attempting to force upon Great Britain in 1845. But, after all, it matters little whether the rule enunciated is ridiculous, or injurious in practice, or even inconsistent with the former professions of the government insisting upon it. The material and de- finitive question is, whether so wide a construction of the phrase '^conticjuitij,'' as would allot unoccupied (and even undiscovered) Oregon to the owner of Louisiana, is, or is not, a recognised rule of Inter- national Law? Those who have paid attention to the principle which runs through all the citations from the European publicists quoted in these pages, will certainly have no hesitation in deciding this question in the negative, nor be in need of the ex- press declaration on the point, which Burlamaqui tending 'le rivers lies, £.nd \j in ex- ow it is one will of lay- )f which 11 rigidly e Rocky of the is there- 3f which dntained ►tally in- ce upon the rule ictice, or lis of the I and de- uction of occupied )wner of )f Inter- mtion to citations ise pages, ding this ■. the ex- irlamaqui 31 has appended to tlie quotation given above from his treatise. After observing that the dominion over vacant countries is to be acquired by taking pos- session of them, he proceeds — "and the dominion thus acquired will extend to just sn much of the country as one is in possession of^T The leading prin- ciple upon wliich the title derived from occupation is founded is, that the territory, and every part of it to which that title attaches, is being made of some real use to the owner ; and this can only be predicated of territory which is either productive itself or neces- sary to the integrity or security of that which is so. In the case of adjacent seas the rule is well known, " Ibi finitur imperium, ubi finitur armorum vis ;" and the principle is precisely the same in relation to a territorial environ, and will sanction the appropria- tion of nothing more than is actually and hond fide essential for the complete enjoyment of the product- ive portion of a settlement, for the maintenance of its necessary or habitual lines of communication, and for its military defence. The question of the extent of environ, in this or that particular case, is of course one that depends on topographical details. In the present case there is certainly no necessity for going into minutiae ; for, with a natural boundary such as that afforded by the Rocky Mountains, and the wildernesses that lie on their eastern declivities, no sensible or honest man can ever contend that Oregon * And see Martens, liv, ii, s. .'38. n 82 (I. 'I I i ■i1 , ;( ;■:'' I ■I ! ■sill 1 •if I is ii necessary environ to Louisiana for any of the purposes al»^ specified. :^o niucli for the second question at issue between Great Britain and the United States. The third and last is raised by the following circumstances: — Between the years 1811 and 1813, there were cer- tain private individuals, citizens of the United States, in occupation of land in the southern part of the Oregon territory. They were members of a private association trading in furs ; and the principal seat of the commercial part of their business, and the place where the principal partner resided, was New York. This trading partnership, through the agency of cer- tain of the partners and clerks, occupied land in Oregon for about two years, and then sold it to a rival British Company. At subsequent periods, similar instances of temporary occupation of spots of land for similar purposes, though on a smaller scale, appear to have occurred in another part ofOregon, (the basin of the Saptiu). The first settlers were citizens of the United States; the purchasers and successors in the settle- ments were British subjects. The Americans retired voluntarily, with no intention of ever returning ; the British hold the ground to this day. Both Ameri- cans and British acted throughout on their own pri- vate account ; neither the one nor the other have received from their governments any commission, order, or authority to do what they did. Neither government ever made its appearance on the Soene, or promulgated any expression of i-.s will upon the y of the between third and were cer- d States, rt of the a private >al seat of the place lew York, cy of cer- d land in dd it to a ids, similar of land for , appear to basin of the the United the settle- jans retired irning ; the Joth Ameri- 3ir own pri- other have commission, d. Neither Q the Scene, ill upon the 33 ►subject, or even gave any indication of its cognisance of what \yi\H going on, till the Americans had already been succeeded by the Jiritish. In this state of things the government of the United States takes up this position. It contends that, at the instant of the first occupation of land by its citizens, the Eminent Do- main over the territory vested, ipso facto, in the United States; that tlie subsequent sale and relinquishment of the spots occupied by its citizens could not affect the right of tlie United States ; and, consequently, that they rcMuain invested with the Eminent Domain over them to this day. So that the British subjects who succeeded to these settlements are to be considered as intruders or trespassers on the territory of the States. Let us approach this position a little more nearly. In the first place, it clearly involves this proposition — that a state may acquire new territory, not merely without anv formal declaration of its intention to that effect, but without even entertaining- anv such intention; and yet w^e have seen tliat Grotius de- clares that, even if the intention had been enter- tained, it would have availed nothing by itself; ob- jecting very naturally, that, if that were so, " one State could not know what the other had designed to appropriate." And Vattel, too, declares it a necessary condition, that a state should " suffisamment inarquer savoloute a cet egard." And Kluber says that the state should have " the deliberate intention of acquiring the property." And Heffter lays down a rule to the same ef- fect. Again, the position now under consideration im- plies that the individual occupants, if subjects of the c :34 ii state, stand in need of no express commission from the state to acquire the sovereignty for it ; and yet Vattel makes it a condition that they should be '• furnished with a commission from their soverei<,ni ;" and Heff- ter, upon a review of all the jiuthorities, declares that there is no such thing as a general tacit authority vested in the individual subjects of a state, to be the means of accpiiring new territory for it. [Eine still- schweiii'ende VoUmacht fiii' alle Unterthanen eines Staates e.risfirt ntcliL'] Indeed, the right of deciding whether such and such a newly discovered or occu- pied country shall or shall not be added to the national domain, is notoriously one which is invariably reserved for the head of the state ; the decision of such a ques- tion involving the most important questions both of domestic and of foreign policy. In the European monarchies it is one of the most important preroga- tives of the crown ; and in the United States it is ex- pressly by the constitution vested in Congress. Now Congress has but one way of expressing its opinion or will on such a subject, namely, by an act passed with all the usual formalities. In the case, therefore, of the United States, no doubt can ever arise as to whether the state has " suffisamment marque sa volonte a cet egard ;" for the existence or non-existence of an act of Congress is a matter that can never be open to any difference of opinion. The notorious fact is, that no act for the annexation of Oregon has ever passed ; and therefore, if the '^ sense of the established writers" is to be followed, the conclusion is inevitable, that the Eminent Domain over Oregon has never yet 35 from tho }t Vattcl iirnishcd nd Heff- ires that authority be the ine still- sn eines deciding or occu- national reserved 1 a ques- both of luropean preroga- it isex- 3s. Now >iRion or sed with e, of the whether ite a cet f an act n to any that no passed ; writers" le, that ;ver yet If vested in the United States. The transfer, therefore, of tlie local establishment of this or that individual settler was a proceeding wliicli can in no way have att'ectcHl the United States, or refpiired their cons(>]it. The sovereiirntv of the United States had not attached to the settlement befo.o their transfer. ]t is impos- sible, therefore, that it should subsist now. Bnt the legal and political condition of i)rivate persons, emigrants from their mother conntry, and settlers in a vacant territory, has been so often mis- represented, tliat it may be convenient to make one or two additional observations npon it in this jdace. The constitution of most states allows the govern- ment to forbid the emigration of the subjects when- ever it thiidvS proper ; but, if no prohibition is laid npon the emigration of this or that person, his con- duct in emigrating will of course be perfectly lawful. Again, it is another usual prerogative of the head of the state to prohibit its subjects from settling in this or that country ; but if it lays no such prohibition on a particular emigrant, liis conduct in settling there will be perfectly lawful, and will carry with it all the usual consequences of such a step. If he, therefore, occupies vacant ground, he acquii'cs the entire pro- perty in it. But, it may be asked, is his position then one of entire independence ? A s against other settlers, and as against foreign governments, his position is one of absolute independence. (Vattel, ii, ss. 90, 7). The rule of Natural Law, which, as we have seen, is incorporated into the Law of Nations, gives him the entire proprietorial right, in virtue of his being the c2 3(3 •I"' I !'■■ ^1 :\'i : Mil; .■A f, 1 1 ill first occupant. Hut liis independence of the govern- ment of his motlier country is :in(,tlier thing, and will dejKMid entirely upon tlu^ Municipal Lav^ of that country. If the Municipal Law of his mother country leaves him at lih(»rty to denationalise himself, (as is sometimes tlie case), he will th ■' '<. "-4< ,1, I ' I m !!^^; 38 the posts originally established by citizens of the United States, and over which, as we have already shewn, the United States had never acquired the Eminent Domain, was a transaction which effectually vested the entire property of those settlements, with all their rights and appurteno:ices, in British sub- jects, who still continue in possession of them, sub- ject only to the acknowledged right of the British crown to assume the hish domain over them at its pleusure. We have now examined at length, and with con- stant reference to the established authorities, the exclusive pretensions of the United States govern- ment to the southern portion of the Oregon Territory, as well those which are based on the dogma of Con- tiffidfij, as those which depend upon the attempt to revive in favour of the government of the United States a claim of rioht, which has lono- ceased to exist, in fa- vour of its original possessors ; and the conclusion to which our examination of them has led us is, that the only rational termination of the controversy as regards this portion of the Territory is to be reached by following the sr.mc- clue as in our previous inquiry relating to the country north of the Oregon River, VIZ. by a valuation and comparison oi' the extent of the districts now actually in tlie bonfi fide occupation of subjects and citizens of the two countries respect- ively. What remains is matter of mere topographi- cal detail, which of necessity we leave to others ; sa- tisfied ourselves, if we shall be found to have fur- nished an intelligible clue to the settlement of a dau- iM 3.9 li geroiis controversy, and to have re-establishe(.l, on a consistent and logical foundation, one imj)ortant principle of International Law. NOTE. The Oregon question, as it subsists at present between tlic United States and Great Britain, has been discussed above solelv upon the footing of the general principles of the Law of Nations, and without allusion to the provisions of any express treaty on the subject. Great Britain, it is well known, has entered into three treaties respecting it ; viz the treaty of 1790 with Spain, and the two treaties of 1818 and 1827 with the United States. But neither of these introduced any modification of the actual rights of the two contracting parties as they might ultimately be agreed (and as we have, in the preceding pages, ascertained them) really to be. The rights of the two governments were to remain precisely as they were at Common Law, if the phrase may be allowed); the only effect they had, or were intended to have, being, to waive or suspend for a time the assertion (on the part of Spain in the one case, and of the United States in the other) of certain overriding pretensions which Great Britain refused to admit, and of which we have been occupied in these pages in de- monstrating the illegality: the arrangement for the meanwhile being by consent precisely that for which Great Britain had uni- formly contended; viz. that the disputed territory should be open to the enterprise of both nations, and of course of all the rest of the world, consistently with the principle that res nidlius cedit primo occvpanii. Ever since the conclusion of the lasL of these treaties, this principle has been in active operation, and is now near the accomplishment of its work. Between liritish and Ame- rican settlers the country is at last actually Ocatpied; and the last duty now to be performed is to trace the line of demarcation between what is occupied by subjects of Great Britain and what by citizens of the United States. FINIS.