been crossed by persons acting in a public seded by subsequent and more accurate ones, capacity. the title by discovery to the whole coast of În 1806, Mr. Fraser, also under the orders of Oregon belongs to Vancouver; for he was) the North-west Company, crossed the Rocky the first who accurately examined it. Lewis) Mountains, and established a trading post on and Clarke were, indeed, public officers; but Fraser's River, about latitude 545; and in their discovery of the Southern sources of 1811, Mr. Thompson, also an agent of that the Columbia, could give no title to the terriCompany, discovered the Northern head-tory watered by a river of which the lower waters of the Columbia about latitude 52°, portion was already well known, and the and erected some huts on its banks. This is Northern sources were discovered by others. the whole amount of the title by discovery. The English claim by discovery is equally On these grounds, that title has been unfounded. Her overland discoverers were claimed by the United States, by England, not public officers; and of her maritime disand by Spain. coverers, it is doubtful whether Drake ever The claim to that title, on the part of the ascended beyond the 43d parallel; and Cook) United States, depends on the discoveries and Vancouver did not see the coast until it) by Gray, and by Lewis and Clarke. They had been surveyed and mapped by Heceta. have chiefly rested on that by Gray; and, in There remains the title of Spain; and, as far virtue of it, claim the sovereignty over all the as mere discovery goes, it is complete. The countries drained by the Columbia-that is, voyages of Perez and Heceta possessed every the whole territory from about latitude 42° to requisite. They were exploring expeditions 52-it being, according to the doctrine of made by government ships, and for governthe American statesmen who conducted the ment purposes, and they were sufficiently (negotiations of 1824 and 1826, an established minute to enable the coast to be mapped. (international law, that a nation which dis- But we have already seen, that settlement) covers the mouth of a river entitles itself to is essential to the completion of a title by disall the territory drained by that river. That covery, and is in itself an independent source is to say, that if Europe had been the unoc- of title.

cupied, and America the discovering country, We proceed, therefore, to inquire what the discovery of the mouth of the Danube title has been acquired to Oregon by Settlewould have given to the discoverers the sov-ment. The first white men who appear to ereignty of Wurtemberg and Baden. It is have shown an intention to fix themselves in scarcely necessary to tell European readers, any part of that country were Meares and his or even American lawyers, that no such ab- companions in 1788. Their continued resisurd rule exists. When Mr. Rush, and after-dence at Nootka Sound raised the jealousy of wards Mr. Gallatin, the American negotiators, the Viceroy of Mexico. He despatched Marwere asked for their authorities, they merely tinez with three armed vessels to dispossess referred to the grants made by European the intruders. Martinez arrived on the 6th sovereigns of the territories watered by cer- May, 1789, at Nootka Sound-erected a fort tain rivers-words of description, convenient there, and soon after seized Meare's vessels, enough for the demarcation of unknown and sent some of his men towards Europe in lands; but no more establishing the law in Captain Gray's ship, the Columbia, and the question than grant after grant, describing rest to San Blas as prisoners.

its subject as bounded by a range of moun- The result was remarkable; each nation tains, would prove it to be a rule of interna- demanded satisfaction-Spain for Meares' tional law, that the nation which first sees a intrusion into what she considered her terri-S mountain range is entitled to all the lands tories: England for the mode in which Spain which that range intersects. Another fatal had taken the law against him into her own objection to any claim founded on Gray's hands. Each armed, but after a waste of discovery, is the really recognized interna- about three millions on our part, and one miltional law, that the discoveries made by lion on that of Spain, and probably a much private individuals give no title to their na- greater loss occasioned to commerce by six tion. They prevent, indeed, any other nation months of uncertainty, the two governments from acquiring a title by discovery, but confer came to their senses. The past was remedied none themselves. by an indemnity given by Spain to Meares,

A third objection is, that Gray was not the and the future provided for by the convention discoverer of the Columbia. It was first seen of the Escurial; or, as it is generally called,) by Heceta, named by him the San Roque, the Nootka Sound Convention, of the 28th and by that name laid down in maps. If October, 1790, Gray, by entering it, and sailing up for fifteen By Article first of that treaty, the buildings miles, superseded Heceta, Broughton again and tracts of land on the North-west coast of superseded Gray by exploring it for more America, of which British subjects had been? than eighty miles further. If it were true dispossessed, were to be restored. that prior imperfect discoveries are super

Article third stipulates that the respective

subjects of England and Spain shall not be changed to Fort George. This is the only disturbed in navigating or fishing in the Pa- case in which any part of the Oregon cific or in the South Seas, or in landing on territory has been occupied by any person the coast of those seas in places not already under the authority of the British GovernSoccupied, for the purpose of commerce with ment. The treaty of Ghent, which termithe natives, or of making settlement there. nated that war, provided for the restoration of By Article fourth, British subjects are not all possessions taken by either party from the to navigate or fish within ten sea-leagues other during the war. In obedience to this from any part of the coast already occupied stipulation, Fort George was, on the 6th of by Spain. October, 1818, restored to an agent appointed By Article fifth, in all places on the North- by the American Government. The British western coast to the North of the parts of flag was struck, and the American hoisted. that coast already occupied by Spain-that This, again, is the only case in which any Sis, to the North of San Francisco, in latitude person authorized by the Government of the 380-wherever the subjects of either nation United States has occupied any part of shall hereafter make settlements, the subjects Oregon. But that occupation was as brief of the other are to have free access. as the occupation of Nootka Sound. Astoria

Captain Vancouver was despatched by the has been abandoned as a settlement, and is British Government to receive the surrender now reduced to a mere log-house, in which of the tracts of land mentioned in the first a clerk of the Hudson's Bay Company rearticle. On his arrival at Nootka Sound, sides, for the purpose of communication behowever, no such tracts of land were iden- tween Vancouver and the mouth of the Cotified. A hut was offered, which he refused. lumbia.

(He left Nootka Sound in the possession of It follows from this statement, that up to the Spaniards; and there is considerable the year 1818, no civilized nation had acquired) doubt whether any lands were ever restored the sovereignty over any part of Oregon. to Meares, or whether there were any to re- Spain was entitled by discovery, but did not store. All that we know is, that in 1795 all perfect that title by permanent settlement; parties, Spaniards and English, had aban- and the settlements, if mere trading posts doned Nootka Sound, and it has not been can be called settlements, made by English reoccupied. or American subjects, were unauthorized by

During his voyage, Vancouver, we trust their respective government. without instructions, was guilty of an assump- The resumption of Nootka Sound by Eng-) tion of sovereignty more ridiculous than even land, and of Astoria by America, were indeed) the average absurdity of such transactions. official executive acts; but each of these

He first took possession, in the name of posts has been abandoned. England, of all the country from latitude 39° Since that time, however, some pastoral 20 to the Straits of Fuca, and afterwards and agricultural establishments have, as we from the Straits of Fuca to the 59th parallel. have seen, been formed.

That is to say, the treaty, to superintend the But on two distinct grounds these settleexecution of which he was despatched, hav-ments give no title to the sovereignty of the (ing stipulated that the whole coast should be soil. First, because they have been merely open to settlement by England and by Spain, the unauthorized acts of individuals. With She took exclusive possession of nearly the respect to the British settlements, this is obwhole of it on the part of England. vious from the statement we have already

We are glad to think that no British nego- given of the words of the Hudson's Bay tiator has relied on this assertion of claim. Company's charter. And with respect to Indeed, the Northern part of the territory the American settlements, the United States comprised in it is now under the undisputed have not done a single act authorizing their sovereignty of Russia, and the Southern un- people to acquire lands beyond the Rocky der that of Mexico. Mountains. Those who have done so are The next important attempt at settlement mere squatters, like the squatters in Texas. was made by Mr. Astor, an American. He And secondly, because the convention of despatched an expedition by sea and by land, 1818, to which we shall immediately proceed, which met near the mouth of the Columbia, and which has never ceased to operate, stip-) and in 1811 erected on its South bank a little ulates that during its continuance the country) fort which he named Astoria, intended to be Westward of the Rocky Mountains shall be the centre of an extensive trade between open to the subjects of both powers; "it beAmerica and China. Nearly the same events ing understood," continues the treaty, "that followed as had occurred at Nootka Sound. this agreement is not to be construed to the In the course of the war between England prejudice of any claim of either party to any and America, which broke out in the next part of the country." It is obvious that the year, Astoria was taken by a British force, right of sovereignty being expressly left in the British standard hoisted, and the name abeyance, no act done by either party, during

the continuance of the treaty, can affect the claims to any territories North of that line. right of the other. Spain, however, having lost by non-user the We now proceed to consider the Treaties rights which she had acquired by discovery, (affecting Oregon. We have already stated had no claims to cede, except such as she was the material parts of the Nootka Sound con-entitled to by mere contiguity, or, as against vention. Between the conclusion of that England, by the Nootka Sound convention. Sconvention in 1790, and the restoration of In 1824 and 1825, the claims of Russia were Astoria in 1818, important events had oc-satisfied by a treaty with the United States. curred in the countries bordering on Oregon. which stipulates that the Russians shall conRussia had created a fur company, authorized fine their settlements to the North of latitude to settle and bring under the Russian sov-54° 40′; and by a treaty with England, by ereignty any portion of America unoccupied which a line beginning at 54° 40', is fixed as by a civilized power. The company scat- the boundary between the Russian and Brit(tered their posts through the Aleutian Islands, ish dominions.

and along the North coast of the Pacific- These treaties, of course, affected only the (fixed their head-quarters at Sitca, near the four nations who were parties to them. As fifty-sixth parallel, claimed all that coast as to those nations, the effect was to exclude Russian territory, and were preparing to ad-Russia and Spain, and to prevent England vance towards the South. The United States, and America from acquiring any title by setby the purchase of Louisiana, extended their tlement as against one another. To the rest Western frontier to the Rocky Mountains. of the world Oregon remains open; and, Oregon, therefore, became contiguous to four unfit as it is by situation, soil and climate, for) great empires. To Russia on the North, to profitable settlement, it is probable that (England and America on the West, and to will long continue open. (Spain on the South. Of the five sources of title, we have now Several questions were open between Eng-gone through three-discovery, settlement, Sland and the United States in 1818. One and treaty; and we have shown that under was that of fisheries. The treaty of 1783 had no one of them has a title to any portion of given, or rather continued, to the people of Oregon been acquired by any civilized nathe United States a general liberty to fish on tion. There remain two others prescription the coasts of British America. America and contiguity. Prescription obviously does claimed the benefit of this stipulation as a not apply to a country which was not discovpermanent arrangement; or, to use the odd ered till the end of the last century. There expression of jurists, a transitory convention. remains, therefore, only contiguity; and this) England maintained that it had ceased by the claim is confined to England and the United war of 1812. A question also existed as to States-Spain and Russia, the other contigu(the Northern boundary line of the United ous States, having taken their shares and States. These points were settled by the retired. But neither England nor America convention of the 20th October, 1818. The can claim a perfect title by contiguity. Neiliberty of fishing was confined within certain ther of them has a settlement within 2000 limits; the forty-ninth parallel was declared miles of the Rocky Mountains. Neither of to divide the British and American territo- them can maintain that the occupation of the ries, from the Lake of the Woods to the country to the West of those mountains is) Rocky Mountains. The American negotia-necessary to the security, or would even add tors, Rush and Gallatin, proposed to continue to the convenience, of her territories to the that parallel as the boundary line down to East of them; accessible as they are only by (the Pacific. This was refused by the British a land journey of between three and four commissioners, Robinson and Goulburn, and thousand miles, or a voyage of eight months. (the Columbia suggested its place. The But an imperfect title by contiguity-a title very undue importance attached at that time depending merely on geographical connecto the Columbia, probably was the circum-tion-each certainly has to the portion of the stance which prevented an agreement. As country which adjoins its own frontier; that the best expedient, the precedent of the is to say, England to the portion North of Nootka Sound convention was followed; the forty-ninth parallel, and America to that and, as we have already stated, the use of South. This is, without doubt, the weakest) (the country was declared to be open to both of all titles; so weak, that when expressed) parties for ten years-the sovereignty remain-in words it seems almost to disappear; for ing in abeyance. On the 22d of February, what can be less substantial than a claim to (1819, Spain and the United States, by the territory which is not yours, merely because Florida treaty, recognized the forty-second it is bounded by that which is? Still, it parallel as their mutual boundary, from the must be admitted to be a source of title, source of the Arkansas, on the Eastern side however slight, where there is no other. And of the Rocky Mountains, down to the Pacific; this is a case in point.

and Spain ceded to the United States all her The arrangements for joint occupation

made by England, first with Spain, and after-the part of England the Columbia as a bonnwards with the United States, were plausible dary, and on the part of America the 49th expedients for the suspension of immediate parallel-the second negotiation was as fruitSdisputes, but could not have been practically less as the first had been. Another attempt Sacted on. Under such an arrangement, the was made in 1826. The American minister, sovereignty being in abeyance, there is no Mr. Gallatin, now offered a slight modificalex loci unless it be the law of the aborigines. tion. He proposed that the forty-ninth parallel The Hudson's Bay Company and the Cana- should be adopted merely as a basis, subject dian courts have, under an act of the British to deviation according to the accidents of the Parliament, power over British subjects, but country: and farther, that if that line should over British subjects only. If an American cross any navigable tributaries of the Colummurder an Englishman under the lines of bia, the navigation of such tributaries, and Fort Vancouver, he cannot be legally pun- also of the Columbia, should be open to ished. The British law cannot touch an British subjects. The British negotiators, American; the American law cannot take Messrs. Huskisson and Addington, adhering Scognizance of a crime committed against a to the Columbia as the general boundary, Sforeigner beyond the sovereignty of the offered to America a detached peninsula, States. The only resource seems to be to bounded on the South by a line to be drawn hand him over to Casenove, to be disposed of from Hood's Inlet to Bulfinch harbor, giving according to Klackatack law. Joint settle- excellent harbors and the Southern coast of ment of the country by two independent the Straits of Fuca; and further, that a strip nations, without common tribunals or a com- along the North bank of the Columbia should mon superior, would be obviously impossible. be neutral, and unoccupied by either nation. Indeed, joint occupation is impossible even Neither proposal was accepted, and the result (for mere hunting and trading purposes. We was an indefinite prolongation of the con(have seen that in the Indian fur-trade the vention of 1818, terminable at the option of Scompetition of white men, even though be- either party on twelve months' notice. Slonging to the same nation and governed by As this was the last negotiation of which the same laws, is destructive to the Indians, the papers are printed, it may be worth while to the furred animals, and to the success of to show the position taken by each party. It) both parties. The Hudson's Bay Company is contained in the British statement annexed) have acted, and continue to act, on this prin- to the protocol of the sixth conference; and ciple. They hold no trade to be worth having in the American counter-statement annexed which is shared. British rivals they exclude to the protocol of the seventh conference.t Sby law; Russian and American by reckless The British negotiators disclaimed all right competition. Nothing can be kinder than to exclusive sovereignty over any part of their conduct to their competitors as men. Oregon. But they maintained that no other They protect them, they clothe them, they power had acquired such a right; and therefeed them; but as traders they crush them. fore that the whole country must be open to If an American post is established, a Hud-settlement by any nation, and, among the son's Bay post instantly rises in its neighbor- rest, by Great Britain. They then refuted by hood. If an American vessel trades along arguments which we need not reproduce, the coast. a Company's ship follows in her (for we have already stated their substance,) wake. If an American offers goods for bar- the exclusive pretensions of America. And ter, the Company, whatever be the loss, un- they concluded by declaring the determinadersells him. "We have compelled," says tion of Great Britain to maintain her qualified Mr. Pelly, in 1838, "the American adventu- rights under the Nootka Sound convention, Srers one by one to withdraw from the contest, until a fair partition shall have been effected. Sand are now pressing the Russian Fur Com- The only parts of Mr. Gallatin's answer) pany so closely, that we hope, at no very which we need notice are as follow:-He distant period, to confine them to the trade of maintained that the Columbia was first distheir own proper territory."* covered by the United States-that this disThe great error of all parties has been the covery was followed by an actual settlement importance attached to Oregon. But, assum-made by Mr. Astor within a reasonable timeing it to be of any value, the Americans and that this discovery and settlement gave a cannot be expected to rest satisfied with an right to the whole country drained by the arrangement which, professing to give them Columbia, and by its tributary streams-that Sequal rights, practically excludes them. We is, to the whole territory between the 52d and Shave seen that in 1818 they proposed a parti-42d parallels. He contended that the Nootka) tion. They again proposed one in 1824; but Sound convention was purely commercialas the terms offered by each party were a that the settlements which it authorized were mere repetition of those of 1818-namely, on trading posts, not colonies, since colonies im* Letter to Lord Glenelg, House of Commons † 20th Congress-1st Session-Document No. Paper, 1842. No. 547. 199, pp. 50-60.

ply exclusive sovoreignty-and that it termi-the settlement in respect of which it is claimnated by the war of 1796. He aflirmed that ed. And we firmly believe in Mr. Gallatin's America, having purchased for a valuable prophecy, that under whatever nominal consideration the rights of Spain, had ac- sovereignty Oregon may be placed, whatever quired a double title, and therefore was enti- its ultimate destinies may be, it will be almost tled to a double share; whereas the British exclusively peopled by the surplus populaproposal offered her only one-third. He con- tion of the United States."

tended that title by contiguity must have The negotiation for partition is now rereference to the magnitude and population sumed, and we trust with a fair prospect of Sof the settlement in respect of which it is success. It is much that the real worthlessclaimed, and the facilities and probabilities ness of the country has been established. All of actual occupation; and he urged that, on that any prudent Englishman or American comparing the comparative population and can wish is, that the controversy should be rate of increase of the United States and of speedily and honorably settled. A week's British America, it must be evident that it is interruption of confidence-such, for instance, (from the United States, not from Canada, as followed the reception of Mr. Polk's inthat the future population of Oregon will augural speech-costs each party twenty proceed. times the value of the matter in dispute.

It is strange that a man of Mr. Gallatin's The obvious course is to refer the whole Sability should have relied on the settlement question to arbitration. The decision of an made by Mr. Astor. Omitting, for the pres- arbitrator necessarily saves the honor of each Sent, the fatal objection that it was a private, party; and in the present case there is nonot a government enterprise, it was a mere thing else to contend for. We have heard attempt to form a trading post. And in the that America objects to arbitration, and that very paper which we are considering, Mr. her objection is founded on her conviction Gallatin affirms, with reason, that mere facto- that the right is on her side. But as there are ries established for the purpose of traffic, and few disputes in which each party is not con(not followed by actual cultivation, give no vinced that he is in the right, it follows, that (title. And lastly, it was abandoned by its if such a conviction were a bar to arbitration, (creator, and is now a ruinous log-house. that mode of adjustment could scarcely ever That the erection of a stockade by private take place. Assuming the honesty and intelStraders, and its retention for a few months, ligence of the proposed arbitrator, the only can give, thirty years after it has been aban-valid objection to arbitration, is the condoned, the sovereignty of a country nearly viction, not merely that we are in the right, twice as large as France, is a position which but that the opposite party knows that we no statesman educated on this side of the are in the right. If we believe this, we beAtlantic will seriously maintain. The con-lieve this, we believe his claim to be fraudustruction of the Nootka Sound convention is lent and vexatious; and we are justified, if (not free from doubt. It certainly resembles the object in itself, or as affecting our honor, the provisions of the treaty of 1783 respecting be adequate, in refusing to allow the question Sthe right of fishing, which, according to the to be discussed. England would not allow English negotiators, was annulled by the war her title to Quebec, or America her title to Sof 1812; and, according to the Americans, Rhode Island, to be the subject of an arbitrawas a permanent arrangement. The con- tion-not merely because each nation is convention of 1827, however, seems to have vinced of the validity of her own title, but made this discussion unimportant. By that because each knows that its validity is known convention, either party may terminate the to the other. In the present case, America, present arrangement on twelve months' no-with that ignorance of international law tice. But as that arrangement and the Nootka which is the glaring defect of American (Sound arrangement, are substantially the statesmen, may possibly be convinced that same, the power to terminate the one neces-her claim to the whole of Oregon is valid; sarily implies a power to terminate the other. but she cannot believe that England knows it The claim founded on purchase from Spain to be valid. She cannot deny that we honwas sophistical. The disputed territery-the estly believe it to be matter of controversy; Sterritory to which the Nootka Sound conven- and if a fourth negotiation should fail, she is Stion applied, began in latitude 38°. By the bound by friendship, by prudence, and by Florida treaty, America ceded to Spain the regard to the welfare of the whole civilized part of it which lies between that parallel world, to allow it to be settled by arbitration. and 42°. But as the ceded portion belonged Our readers have perhaps a right to ask just as much to England as it did to America, what in our opinion the decision of an honest to found on this cession a title against England arbitrator would be? We think that we was altogether childish. But we admit that have supplied premises from which it may there is a foundation for the premise, that title be inferred. We have shown that no nation by contiguity is affected by the importance of now possesses any title, perfect or imperfect,