1889volumeIpage120-133

History of the Pacific Northwest
Oregon and Washington 1889
Volume I
Page 120 - 133

CHAPTER XVII.
(1807 - 1827.)

Conflicting Claims to Northwestern Coast of America - Abortive Efforts to Settle the Boundary of Respective Possessions - Capture and Surrender of Astoria - Convention of 1818 - United States Acquires the Spanish Claim by Florida Treaty - Russia Limited to Making Settlements Northward of Fifty-four Degrees, Forty Minutes by Conventions with Great Britain and United States - That Parallel Becomes the Northern Boundary of the Oregon Territory - Great Britain and the United States the Only Claimants of Oregon - Treaty of 1827.

THE exploration, settlements and acts heretofore narrated constitute the bases upon which Russia, Spain, Great Britain and the United States respectively asserted claim to the territory on the northwest coast of America. Russia exclusively claimed the coast north of fifty-one degrees north, with all adjacent islands. Her tenable or recognized claims, as defined by herself, will be found in the grant (July 8, 1799), by Emperor Paul, to the Russian-American Fur Company: "In virtue of the discovery by Russian navigator of a part of the coast of America in the northeast, beginning from the fifty-fifth degree of latitude, and of claims of islands extending from kamtchatka, northward towards America, and southwards toward Japan, Russia had acquired the right of possessing those lands. And the said company is authorized to enjoy all the advantages of industry, and all the establishments upon the said coast of America, in the northeast, from the fifty-fifth degree of latitude to Behring's Strait and beyond it, as also upon the Aleutian and Kurile Islands and others situated in the Eastern Ocean."

Nor did Russian traders subsequent to that year establish settlements or make discoveries south of that parallel. Still Russia assumed the fifty-first degree to be the southern limits of her possessions as against the United States, upon the ground that such parallel was midway between Sitka and the mouth of the Columbia river. That power also maintained rights of sovereignty over the whole of the Pacific north of fifty-one degrees, inasmuch as that portion of the ocean was bordered on both sides by Russian territory, and was for such reason a close sea. Consonant with these views, though asserted later than the period which marks the commencement of this chapter, Russian pretensions to sovereignty on the northwest coast are all well illustrated in the Imperial Ukase of September 4, 1821, immediately following the renewal of the charter of said company. That Ukase asserts "that the whole west coast of America north of the fifty-first degree, the whole east coast of Asia north of forty-five degrees, fifty minutes, with all adjacent and intervening islands, belong exclusively to Russia; and it also prohibits the citizens and subjects of all other nations, under severe penalties, approaching within one hundred miles of any of these coasts, except in cases of extreme necessity."

(120)

CONFLICTING CLAIMS TO NORTHWESTERN COAST OF AMERICA. 121

The Spanish claim was equally bod: "The right and dominion of the Crown of Spain to the northwest coast of America, as high as the Californias, are certain and indisputable, the Spaniards having explored it as far as the forty-seventh degree in the expedition under Juan de Fuca in 1592, and in that under Admiral Fonté to the fifty-fifth degree in 1640. The dominion of Spain in its vast regions being thus established, and her rights of discovery, conquest and possession being never disputed, she could scarcely possess a property founded on more respectable principles, whether of the law of nations, of public law, or of any others which serve as a basis to such acquisitions as compose all the independent kingdoms and states of the earth." Such was its assertion by Chevalier de Onis, so long the accomplished Minister of Spain to the United States. It was made while Spain was asserting title adversely to all other nations. It expressed the measure of Spanish claim, not only when uttered but as asserted for centuries. This contention derives additional value, indicating as it does the conviction as entertained by a most eminent Spanish stateman, that no territory nor claim thereto had been surrendered to Great Britain in the Nootka Treaty and the incidents growing out of it.

Great Britain did not assert exclusive title to any portion of the northwest coast. The voyages of Drake, Cook, Meares, Vancouver and others to the coast, of Sir Alexander Mackenzie across the continent, followed by the formation of establishments within the territory, all afford evidences that portions of the coast and much of the interior had been claimed by British subjects in the name of their sovereign. Whatever rights could attach to or grow out of those acts, the British government had no idea of relinquishing. Two of her eminent negotiators thus defined her status. "Great Britain claims no exclusive sovereignty over any portion of that territory. Her present claim, not in respect to any part, but to the whole, is limited to a right of joint occupancy, in common with other states, leaving the right of exclusive dominion in abeyance. In other words, the pretensions of the United States tend to the ejection of all other nations, among the rest, of Great Britain, from all the rights of settlement in the district claimed by the United States. The rights, in resistance to the exclusive character of the pretensions of the United States." British authorities thus commented upon the Spanish claim: "If the conflicting claims of Great Britain and Spain, in respect to all that part of the coast of North America, had not finally been adjusted by the convention of Nootka in the year 1790, and all the arguments and pretensions, whether resting on priority of discovery, or derived from any other consideration, had not been definitely set at rest by the signing of that convention, nothing could be more easy than to demonstrate that the claims of Great Britain to that country, as opposed to those of Spain, were so far from visionary or arbitrarily assumed that they established more than a parity of title to the possession of the country in question, either as against Spain or any other nation."

Fairly stated, Great Britain asserted no exclusive title, but preferred to acquire and rely upon possession, strengthening her claim by settlements permitted by other nations, who in such permission admitted that their title was insufficient to authorize her exclusion. Being thus in possession, and herself the judge of the indefeasibility of adverse title, she could elect whether she would be ousted. In the meantime, we do not admit your title to be any better than ours. In other words, just such a title as in all ages of the world might has made right."

122 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

The claim of the United States was at that time of a two-fold character: In its own right, based upon the discovery of the Columbia river by a citizen of the United States; subsequent explorations of that river by Lewis and Clark, from its sources to its mouth, followed and strengthened by American settlements upon its banks. Upon the universally recognized principle of the law of nations, that the discovery of a river, followed by acts of occupancy, secured the right to the territory watered by it and its tributaries, the United States claimed the territory west of the Rocky Mountains lying between forty-two degrees and fifty-one degrees north latitude, subject to the claim of Spain by virtue of the voyages of discovery by Spanish navigators to portions of the coast or its adjacent islands.

As successors to France: By purchase of Louisiana in 1803, the United States acquired the claim of continuity to the territory from the Mississippi westward to the Pacific Ocean, of the breadth of that Province, its north line according to the Treaty of Utrecht (1713) being the dividing line between the Hudson's Bay Territory and the French Provinces in Canada. The doctrine had for centuries been recognized, that continuity was a strong element of territorial claim; indeed its application had been universal to the colonization of the Atlantic seaboard. All European powers, in making settlements, maintained that colonial grants or charters (if not otherwise expressed) comprised not only the limits named therein, but included a region of country of like breadth extending across the continent to the South Sea or Pacific Ocean. For the integrity of this principle, the war between Great Britain and France had been waged, which terminated by the treaty of 1763. By that treaty the former power received Canada and Illinois, renounced to France all territory west of the Mississippi, and thereby surrendered any claim by continuity westward of that river. Thus was conferred upon France all claim to the territory on the American continent westward of the Mississippi river, which, by the principle of continuity, extended westward to the Pacific ocean, subject alone to the claims which might be set up by Spain. To the summit of the Rocky Mountains, the French title to the Louisiana territory was absolute and indefeasible; and, it may be safely contended, good to the South Sea or Pacific Ocean, if not interfered with by actual occupancy of an adverse power. The treaty of 1763 transferred to France whatever benefits might accrue from the recognized doctrine of continuity, and forever barred Great Britain from asserting such claim; for she was therein exclusively limited to the Mississippi river as the western boundary of her American possessions. The treaty of peace in 1793, between Great Britain and the United States, established our national independence, constituted the United States successor of Great Britain, with its western boundary, the Mississippi river, as prescribed and defined by the treaty of 1763. The Louisiana Purchase, therefore, restored to the United States, assignee and successor to France, the great link of continuity which Great Britain had lost by the treaty of 1763. Such were the relative claims to this territory in the early part of the nineteenth century.

Shortly after the Louisiana Purchase, negotiations were commenced between the United States and the British government for the adjustment of the boundary line between the respective possessions westward of the Mississippi river. This resulted in the signing of a convention (in 1808) by negotiators of the two governments, by the fifth article of which "the forty-ninth parallel, from its intersection by a line drawn from the most northwestern point of the Lake of the Woods, westward to the Rocky Mountains, was defined as said boundary; but nothing in the present article shall be construed to extend to the northwest coast of America, or to the territory belonging to or

ABORTIVE EFFORTS TO SETTLE RESPECTIVE BOUNDARIES. 123

claimed by either party on the continent of America to the westward of the Stony Mountains." President Jefferson objected to the proviso, as "it could have little other effect than as an offensive intimation to Spain that the claims of the United States extended to the Pacific ocean. However reasonable such claims may be compared with those of others, it is impolitic, especially at the present moment, to strengthen Spanish jealousies of the United States, which it is probably an object with Great Britain to excite by the clause in question." The President rejected the treaty without submitting it to the Senate.

In the negotiations which terminated in the Treaty of Ghent (December 20, 1814), the effort was renewed to establish the northern boundary of the United States, westward of the Mississippi river. The United States commissioners offered the boundary line and proviso of the convention of 1807. The British negotiators signified their willingness to accept the proposition, coupled with the right of navigation of the Mississippi river from British America to the Gulf of Mexico. That proposition was not entertained; and the treaty was concluded without allusion to the northern boundary of the United States westward of the Lake of the Woods.

There was, however, in the first article of the Treaty of Ghent, a stipulation, the fulfillment of which became an important feature in the Oregon controversy, to wit: "All territory, places and possessions whatsoever, taken by either party from the other during the war, or which may be taken after the signing of this treaty, shall be restored without delay."

On the 18th of July, 1815, James Monroe, Secretary of State, notified the British Minister at Washington that the United States government would immediately take the necessary steps to reoccupy the post at the mouth of the Columbia river, called Astoria by its founder, but nominated Fort George by the British. In 1817, Captain James Biddle, United States Navy, in command of the sloop-of-war Ontario, sailed for the mouth of the Columbia river, bearing hence Hon. J.B. Prevost, United States Commissioner. The object of this voyage was to assert United States sovereignty in the country adjacent to the Columbia river in a friendly and peaceable manner, and without the employment of force.

On the sailing of the Ontario, the British Minster at Washington remonstrated. Discussion ensued as to the method of restitution, character of settlement, and the effect that such surrender would have on the respective claims of the two governments. It was insisted by the United States, and conceded by the British negotiators, that the status quo ante bellum should be restored; that, in treating of the title, the United States should be in possession. The unconditional surrender of Astoria to the United States having been agreed upon, negotiations on the question of the northern boundary west of the Mississippi were resumed.

In pressing a final disposition of the boundary to include the territory west of the Rocky Mountains, the United States asserted the intention "to be without reference or prejudice to the claims of any other power." At this time, the boundary between the Spanish North American possessions and the United States had been undetermined; the Russian possessions on the northwest coast, which advanced southwardly, had not been definitely limited. The proposition submitted by the United States was the forty-ninth parallel, from its intersection by a line drawn through the northwest extremity of the Lake of the Woods westward to the Pacific Ocean. The British negotiators again insisted upon the right of navigating the Mississippi from its sources to the Gulf. It was not expected that the proposition would be entertained; and thus ended the matter.

124 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

The relative rights of Great Britain and the United States to the territory of the Pacific coast were freely discussed. Messrs. Gallatin and Rush maintained that the discovery of the Columbia river by Captain Robert Gray, the exploration from its headwaters to the ocean by Lewis and Clark, and the American settlement on its banks near its mouth (Astoria), rendered the claim of the United States "at least good against Great Britain to the country through which such river flowed, though they did not assert in reply, referred to the discoveries by British navigators, especially those of Captain Cook and to purchases from the natives south of the river columbia, which they alleged as to boundary, but intimated that the Columbia was the most convenient that could be adopted; nor would they agree to any settlement that did not give to Great Britain the harbor at the mouth of the Columbia river in common with the United States. As the discussion progressed, difficulties multiplied. Agreement being impossible, negotiations were brought to an end by the treaty of October 20, 1818, which determined the boundary of the United States westward to the Rocky Mountains.

The third article of that treaty refers to Oregon Territory as follows:

"It is agreed that any country that may be claimed by either party, on the northwest coast of America westward of the Stony (Rocky) Mountains, shall, together with its harbors, 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 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."

Immediately after the conclusion of the so-called Joint-Occupancy Treaty, which was really a mutual covenant that neither government would attempt acts in prejudice to the other's claims, the United States renewed negotiations with Spain for the adjustment of the southwestern boundary of the former nation. This resulted (February 22, 1819) in the Treaty of Florida.

In consideration of the cession of Florida by Spain, the Sabine river was constituted the western boundary of the United States. The southern boundary was designated by "a line drawn of the meridian from the source of the Arkansas river, northward to the forty-second parallel, thence along the parallel to the Pacific (1) ocean;" and Spain ceded to the United States "all rights, claims and pretensions to any country north of the said forty-second parallel."

Thus and thereafter, the Florida Treaty had eliminated Spain from the controversy, and left the United States successor in interest, clothed with all the rights which has inured to Spain by virtue of the discoveries of Spanish navigators.

Such being the attitude of the respective claimants, John Quincy Adams, Secretary of State, on the 22nd of July, 1823, addressed instructions to Richard Rush, Minister to England, that memorable letter insisting upon the adjustment of the boundaries of the several claims on the northwest coast of America, which clearly exhibits the view of the government as to its territorial rights west of the Rocky Mountains, and the weight attached by it to the claims of other nations. Says he: "Among other subjects of negotiation with Great Britain which are pressing upon the attention of this government

(1) By treaty, January 12, 1928, the Republic of Mexico adopted, as her northern boundary line, said western and southern line of the United States as defined by the Florida Treaty.

INSTRUCTIONS TO RICHARD RUSH, MINSTER TO ENGLAND. 125

is the present condition of the northwest coast of this continent. By the treaty of amity, settlement and limits between the United States and Spain of February 22, 1819, the boundary line between them was fixed at forty-two degrees north latitude, from the source of the Arkansas river to the South Sea. by which treaty the United States acquired all the rights of Spain north of that parallel.

"The rights of the United States to the Columbia river, and to the territory washed by its waters, rest upon its discovery from the sea, and nomination by a citizen of the United States; upon its exploration to the sea by Captains Lewis and Clark; upon the settlement of Astoria made under the protection of the United States and restored to them in 1818; and upon the subsequent acquisition of all rights of Spain, the only European power who, prior to the discovery of the river, had any pretensions to territorial rights on the northwest coast of America. The waters of the Columbia extended by the Multnomah to the forty-second degree of latitude, thence descending southward, till its sources almost intersect those of the Missouri. To the territory thus watered, and immediately contiguous to the original possessions of the United States as first bounded by the Mississippi, they consider their rights to be now established by all the principles which have ever been applied to European settlements upon the American hemisphere."

Mr. Adams then adverts to the claim of Russia. The subsequent acquisition of Alaska by the United States has imparted a vast interest to this letter; yet its bearing on the history of Oregon is so remote, that omission becomes necessary. Returning to the British pretensions, he continues: "Until the Nootka Sound contest, Great Britain had never advanced any claim to territory upon the northwest coast of America by right of occupation. Under the treaty of 1763, her territorial rights were bounded by the Mississippi. On the 22nd of July, 1793, Mackenzie reached the shores of the Pacific by land, from Canada, in latitude fifty-two degrees, twenty-one minutes north, longitude one hundred and twenty-eight degrees, two minutes west of Greenwich.

"It is stated in the fifty-second number of the Quarterly Review, in the article on Kotzebue's voyage, 'that the whole country, from latitude fifty-six degrees, thirty-nine minutes to the United States, in latitude forty-eight degrees or thereabouts, is now, and has long been, in the actual possession of the British North West Company; that this company have a post on the borders of a river in latitude fifty-four degrees, thirty minutes north, longitude one hundred and twenty-five degrees west, and in latitude fifty-five degrees, fifteen minutes north, longitude one hundred and twenty-nine degrees, forty-four minutes west. By this time (March, 1822), the united company of the North West and Hudson's Bay have in all probability founded an establishment.'

"It is not imaginable that, in the present condition of the world, any European nation should entertain the project of settling a colony on the northwest coast of America. That the United States should form establishments there, with views of absolute territorial rights and inland communication, is not only to be expected, but is pointed out by the finger of nature, and has for years been a subject of serious deliberation in Congress. A plan has been for several sessions before them for establishing a territorial government on the borders of the Columbia river. It will undoubtedly be resumed at their next session; and, even if then again postponed, there cannot be a doubt that, in the course of a very few years, it must be carried into effect.

Previous to the restoration of the settlement at the mouth of the Columbia river in 1818, and again upon the first introduction in Congress of the plan for constituting a territorial government there, some disposition was manifested, by Sir Charles Bagot and Mr. Canning,

126 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

to dispute the right of the United States to that establishment; and some vague intimation was given of British claims on the northwest coast. The restoration of the place, and the convention of 1818, was considered a final disposition of Sir Charles Bagot's objections; and Mr. Canning declined committing to paper that which he had intimated in convention.

"The discussion of Russian pretensions in the negotiations now proposed necessarily involves the interests of three powers, and renders it manifestly proper that the United States and Great Britain should come to a mutual understanding, with respect to their respective possessions, as well as upon their joint views with reference to those of Russia.

"The principles settled by the Nootka Convention of 28th of October, 1790, were:

"1st. That the rights of fishing in the South Seas or trading with the natives of the northwest coast of America, and of making settlements on the coast itself, for the purpose of that trade, north of the actual settlements of Spain, were common to all the European nations, and of course to the United States.

"2d. That as far as the actual settlements of Spain had extended, she possessed the exclusive rights, territorial, of navigation and fishery, extending to the distance of ten miles from the coast actually so occupied.

"3d. That on the coasts of South America and adjacent islands, south of the parts already occupied by Spain, no settlement should thereafter be made either by British or Spanish subjects; but on both sides should be retained the liberty of landing and erecting temporary buildings for the purpose of fishing. These rights were also, of course, enjoyed by the people of the United States.

"The exclusive rights of Spain to any part of the American continents have ceased. That portion of the convention, therefore, which recognizes the colonial rights of Spain on the continents, though confirmed between great Britain and Spain by the first additional article of the treaty of 5th of July, 1814, has been extinguished by the fact of the independence of the South American nations and of Mexico. Those independent nations will possess the rights incident to that condition; and their territories will, of course, be subject to no exclusive right of navigation in their vicinity, or of access to them by any foreign nation."

That great statesman then promulgates the great vital principle, the application of which must eventually Americanize this continent:

"A necessary consequence of this state of things will be that the American continents, henceforth, will no longer be subject to colonization. Occupied by civilized, independent nations, they will be accessible to Europeans, and each other, on that footing alone; and the Pacific Ocean, in every part of it, will remain open to the navigation of all nations; in like manner will the Atlantic. Incidental to the condition of national independence and sovereignty, the rights of interior navigation of their rivers will belong to each of the American nations within its own territories.

"The application of colonial principles of exclusion, therefore, cannot be admitted by the United States as lawful upon any part of the northwest coast of America, or as belonging to any European nation. Their own settlements there, when organized as territorial governments, will be adapted to the freedom of their own institutions, and, as constituent parts of the Union, be subject to the principles and provisions of the Constitution. If the British Northwest and Hudson's Bay Companies have any posts on the coast, as suggested in the article of the Quarterly Review above cited, the third article of the convention of the 20th of october, 1818, is applicable to them. Mr. Middleton (envoy to Russia) is authorized by his instructions to propose an article of similar import, to be

NEGOTIATIONS BETWEEN RUSSIA, GREAT BRITAIN AND UNITED STATES. 127

inserted in a joint convention between the United States, Great Britain and Russia, for a term of ten years from its signature. You are authorized to make the same proposal to the British government, and, with a view to draw a definite line of demarkation for the future, to stipulate that no settlement shall hereafter be made on the northwest coast, or any of the islands thereto adjoining, by Russian subjects south of latitude fifty-five degrees, by citizens of the United States north of latitude fifty-one degrees, or by British subjects either south of fifty-one degrees or north of fifty-five degrees.

"I mention the latitude of fifty-one degrees as the bounds within which we are willing to limit the future settlement of the United States, because it is not to be doubted that the Columbia river branches as far north as fifty-one degrees (1), although it is most probably not the Tacouche Tessee of Mackenzie (2). As, however, the lie runs already in latitude forty-nine degrees to the Stony Mountains, should it be earnestly insisted upon by Great Britain, we will consent to carry it in continuance on the same parallel to the sea."

The copiousness of the extracts has been deemed essential to a thorough understanding of the attitude of the United States in the initiation of its diplomatic policy regarding the territory west of the Rocky Mountains. Those instructions render plain that protracted diplomatic war. Briefly, but forcibly, is exhibited the claims of the three great powers. Temperately, firmly, and without arrogance, the title of the United States is maintained. How unmistakably is the policy indicated that should govern. Indeed here is found the full recital of the American claim. With a proper spirit of concession, dictated only by a disposition to avoid disturbing friendly relations, the American Secretary consented that, as the line of forty-nine degrees had become historical east of the Rocky Mountains, it might be adopted as the continuing boundary, westward to the Pacific Ocean.

"At the proposal of the Russian Imperial government, made through the Minister of the Emperor residing here, full power and instructions have been transmitted to the Minster of the United States residing at St. Petersburg, to arrange by amicable negotiations the respective rights and interests of the two nations on the northwest coast of this continent. A similar proposal has been mad by his Imperial Majesty to the government of Great Britain, which has likewise been acceded to. The government of the United States has been desirous, by this friendly proceeding, of manifesting the great value which they have invariably attached to the friendship of the Emperor, and their solicitude to cultivate the best understanding with his government. In the discussion to which this interest has given rise, and in the arrangements by which they may terminate, the occasion has been judged proper for asserting, as a principle in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European power."

On the 1st of April, 1824, Mr. Rush opened negotiations with the British Ministers, Messrs. Stratford Canning and William Huskisson. Mr. Rush persistently endeavored to secure what the government had instructed him to obtain. His propositions were rejected. The British negotiators offered the forty-ninth parallel until its intersection with the northeastern most branch of the Columbia river (Clark's Fork), thence following said river to the ocean, guaranteeing to the citizens and subjects of both nations the perpetual right of free navigation of the Columbia river. Mr. Rush rejected the proposition, and the negotiations terminated.

(1) Recent explorations have determined that the Columbia river, having risen in the Rocky Mountains, flows northerly as high as fifty-two degrees, ten minutes, when it receives the Canoe river, this latter tributary taking its rise in latitude fifty-three degrees.

(2) The Tacouche Tessee of Sir Alexander Mackenzie has since proven to be the Fraser river.

128 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

On the 17th of April, 1824, Mr. Middleton, Minister to Russia, concluded a treaty at St. Petersburg, between the United States and Russia, by which fifty-four degrees, forty minutes north was fixed as the line, north of which the citizens of the United States were prohibited from making settlements, and south of which no Russian settlement should be allowed. In February, 1825, Great Britain and Russia entered into a treaty by which the line of fifty-four degrees, forty minutes was fixed as the dividing line between their respective territorial claims on the Pacific coast. Thus and then was stamped upon the region the far-famed line of fifty-four degrees, forty minutes. The Oregon territory hereafter in controversy between Great Britain and the United States may be described as the region lying between the Rocky Mountains and the Pacific Ocean, and between forty-two degrees and fifty-four degrees, forty minutes north latitude.

In 1828 an attempt was renewed to secure from great Britain an adjustment of the northern boundary of Oregon Territory. Albert Gallatin then represented the United States at the British Court. Henry Clay, Secretary of State (June 19, 1826), thus instructed him:

"It is not though necessary to add much to the argument advanced on this point in the instructions given to Mr. Rush, and that which was employed by him in the course of the negotiation to support our title as derived from prior discovery and settlement at the mouth of the Columbia river, and from the treaty which Spain concluded on the 22nd of February, 1819. That argument is believed to have conclusively established our title on both grounds. Nor is it conceived that Great Britain has, or can make out, even a colorless title to any portion of the northern coast." The opinion of that illustrious statesman as to the effect of the acquisition of the Spanish claim by the Florida Treaty is expressed in this language; "By the renunciation and transfer contained in the treaty with Spain of 1819, our right extended to the sixtieth degree of latitude."

In a later dispatch to Mr. Gallatin (February 24, 1827), Mr. Clay referred to the British claims as "new and extraordinary," adding "that they have not yet produced any conviction in the mind of the President of the validity of the pretensions brought forward, nor raised any doubts of the strength and validity of our own title." In regard to the American offer of the forty-ninth parallel, he said: "It is conceived in a genuine spirit of concession and conciliation, and it is our ultimatum, and you may so announce it." Mr. Gallatin, having advised the State Department of its rejection by the British negotiators, Mr. Clay instructed him to declare "that the American government does not hold itself bound hereafter, in consequence of any proposal which it has heretofore made, to agree to the line which has been so proposed and rejected, but will consider itself at liberty to contend for the full extent of our just claims; which declaration you must have recorded in the protocol of one of your conferences; and to give it more weight, have it stated that it has been done by the express direction of the President."

In this negotiation (1826-7), the British claim was represented by Messrs. Huskisson, Charles Grant and Henry W. Addington. Mr. Gallatin so powerfully sustained the United States claim, that the British negotiators ultimately admitted that Great Britain did no assert any title to the country, but urged that her claim was good against the United States; that it conferred right to occupy the territory in common with other nations; that Oregon was free and open territory to British subjects under concessions by Spain in the Nootka Convention. Complaint was made by the British negotiators of the recommendation by President Monroe in his annual message to Congress, December 7, 1824, to establish a military post at the mouth of the Columbia river, as also of the passage by the House

TREATY OF 1827. 129

of Representatives, December 23, 1824, of the bill "To provide for occupying the Oregon river." Mr. Gallatin answered, citing the Act of the British Parliament of July 2, 1821, "An Act for regulating the fur trade, and establishing a criminal and civil jurisdiction in certain parts of North America." Whilst by its provisions vast and unrestricted privileges were conferred upon the Hudson's Bay Company, the company were endowed with all the powers of government; nor were American citizens within the territory exempted from liability to civil and criminal jurisdiction of British courts. He also urged that the United States possessed no such companies, nor did the power exist to charter them; that its only method of protection to its own citizens was through the forms of a territorial government, which could not do more for American citizens than did the act of Parliament for those British subjects who might be present in the territory under the license of trade; that the said act of Parliament actually clothed the licensed Hudson's Bay Company with the exclusive occupancy of the territory. He further contended that a territorial government, established solely with the motive of protecting citizens of the United States present within the territory, in nowise infringed upon the treaty of 1818; and that, under the provisions of that treaty, there was not the slightest impropriety in the United States government erecting forts within the territory for the protection of its citizens against the native population. These explanations were entirely satisfactory to the British negotiators; and no further objections were made.

Mr. Gallatin again offered the forty-ninth degree, to the Pacific Ocean, with the further concession that "the navigation of the Columbia river shall be perpetually free to subjects of Great Britain in common with citizens of the United States, provided that the said line should strike the northeasternmost or any other branch of that river at a point at which it was navigable for boats." This offer was summarily rejected by the British Ministers, who renewed the offer of 1824, with this addition. "To concede to the United States the possession of Port Discovery, on the southern coast of de Fuca's Inlet, and annex thereto all that tract of country comprised within a line drawn from Cape Flattery along the southern shores of de Fuca's Inlet to Point Wilson, at the northwestern extremity of Admiralty Inlet; from thence along the western shore of that Inlet across Hood's Canal to the point of land forming the northeastern extremity of said Inlet; from thence along the eastern shore of that inlet to the southern extremity of the same; from thence direct to the southern point of Gray's Harbor; from thence along the shore of the Pacific Ocean to Cape Flattery as before mentioned." The British Plenipotentiaries coupled this offer with a protest against "its being considered as a prejudice to the claims of Great Britain included in her proposals of 1824; and declared that such offer was not called for by any just comparison of the grounds of those claims and of the counterclaim of the United States, but rather as a sacrifice which the British Government had consented to make, with a view to obviate all evils of future indifference in respect to the territory west of the Rocky Mountains." The proposition ws rejected by Mr. Gallatin. The negotiations terminated in the treaty of August 6, 1827.

At the opening of the first session of the twenty-fifth Congress (December, 1827), President John Quincy Adams, in his annual message, announced the negotiation of the treaty of August 6, 1827, which continued in force the treaty of 1818 for an indefinite period from and after October 25, 1828, at which date the third article of the former treaty defining the rights of both governments in the Oregon territory would have expired. It was, however, provided that either government might abrogate the latter convention, by giving twelve months' notice.

130 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

The next chapter reciting the proceedings in Congress in regard to Oregon will be found to chronicle facts which have occurred anterior to the time to which we have traced those negotiations. This has been essential to preserve the integrity and intactness of diplomatic history, not only because of the intimate connection of events, consequent upon each other, and entirely independent of such congressional acts, but really because the treaty of 1827 was a mere enlargement of the term of joint occupancy provided by the treaty of 1818. The only change in the status of parties to each other, to, in or about the territory, had occurred when the claims of the United States had become augmented by the assignment of the Spanish title. It was alike essential to an appreciation of congressional proceedings, thus to have traced the antecedents, extent and territorial rights, - in short, what constituted the Oregon Territory, about which Congress was inaugurating legislation.

There can be no doubt that, during the continuance of these two treaties, British foothold in Oregon was immeasurably strengthened and the difficulty of the adjustment of boundaries materially enhanced. Nor does this reflect in the slightest degree upon those great publicists who managed the claim of the United States in those negotiations. Matchless ability and earnest patriotism, firm defense of the integrity of the United States' mark those negotiations in every line. The language and intention of those treaties are clear and unmistakable. Neither government was to commit any act in derogation of the other's claim, nor could any advantage inure to either; during their continuance the territory should be free and open to citizens and subjects of both nations. Such is their plain purport; such the only construction which their language will warrant. Yet it cannot be controverted that the United States had thereby precluded itself from the sole enjoyment of the territory which it claimed in sovereignty; nor that Great Britain acquired a peaceable, recognized and uninterrupted tenancy-in-common in regions where her title was so imperfect, that she herself admitted she could not successfully maintain, nor did she even pretend to assert it. She could well afford to wait. Her's was indeed the policy later in the controversy styled masterly inactivity: "Leave the title in abeyance, the settlement of the country will ultimately settle the sovereignty." In no event could her colorless title lose color; while an immediate adjustment of the boundary would have abridged the area of territory in which, through her subjects, she already exercised exclusive possession, and had secured the entire enjoyment of its wealth and resources. The Hudson's Bay Company, by virtue of its license of trade excluding all other British subjects fro the territory, was Great Britain's trustee in possession; - an empire company, omnipotent to supplant enterprises projected by citizens of the United States, which had effectually closed the door of the territory to citizens of the United States. Indeed, the territory had been appropriated by a wealthy, all-powerful monopoly, with who it was ruinous to attempt to compete. Such is a true exhibit of the then condition of Oregon, produced by causes extrinsic to the treaty, which the United States government could neither counteract nor avoid. The United States had saved the right for its citizens to enter the territory, had protested likewise that no act nor omission by the British government or her subjects during such joint-occupancy treaties, should affect in any way the United States' claim to the territory.

It is neither expedient nor profitable to inquire whether the Hudson's Bay Company had intention to strengthen British claim to Oregon, beyond the natural and laudable

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desire of English subjects to covet perpetuation and extension of British grandeur and power. Certain it is that the company, by its wealth, organized efficiency and absorbing tendencies, did exclude for many years all other persons from that territory; did achieve for the British government a sole occupancy by its subjects; did afford the basis for the only lien the British government ever acquired to Oregon Territory, or any part of it. During the continuance of that mere franchise of trade, mere privileges of presence, amplified into possessory rights of such importance that their divestment became a matter of vast concern, - a complication in that prolonged controversy. In fact, those joint occupancy treaties secured to Great Britain all that she desired, - time for the Hudson's Bay Company to ripen possessory rights into a fee simple in the soil itself.

The treaties of 1818 and 1827 have passed into history as conventions for joint occupancy. Practically, they operated as grants of possession to Great Britain, or rather to her representative, the Hudson's Bay Company, who, after the merger with the North West Company, had become sole occupant of the territory. The situation may be briefly summed up: The United States claimed title to the territory. Great Britain, through its empire-trading company, occupied it, - enjoyed all the wealth and resources derivable from it.

That no injustice may be done to the memory of those three model American statesmen, Adams, Clay and Gallatin, under whose auspices those treaties had been negotiated, three as great minds and devoted patriots as our own or any nation has ever produced, whose sole end and aim were the grandeur and progress of their country and its institutions, this chapter is concluded with the explanation of the motives prompting, and the results accompanied by, those joint-occupancy conventions, by John Quincy Adams, who, as Secretary of State, was connected with the treaty of 1818, and, as Chief Magistrate of the Union, had assented to the treaty of 1827.

In the memorable debate in the National House of Representatives (session 1845-6) on the Oregon question, the venerable John Quincy Adams, on the 9th of February, 1846, in his demonstration of the validity of the title of the United States up to fifty-four degrees, forty-minutes, and his masterly exposition of the fallacy and audacity of British claim to any portion of the treaty on the Pacific coast, thus construes the third article of the treaty of 1818, made pursuant to instructions given by him as Secretary of State, and continued in force by the convention of 1827, while he was President:

     "There is a very great misapprehension of the real merits of this case, founded on the misnomer which declares that convention to be a convention of joint occupation. Sir, it is not a convention of joint occupation. It is a convention of non-occupation, - a promise on the part of both parties that neither of the parties will occupy the territory, for an indefinite period; first, for ten years; then until the notice should be given by the one party or the other that the convention shall be terminated; that is to say, that the restriction, the fetters upon our hands, shall be thrown off which prevents occupation."
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     "There is no occupation now. Occupation is the thing we want. Occupation is what I am putting an end to that convention for, because it says that we shall not occupy that territory. The gentlemen from Georgia (Hon. T. Butler King), in his personal remarks to me, has thought it proper to call on me to say why, in 1818, and again in 1827, I was willing to agree to this convention with Great Britain, while I now pretend to say that we have a right to the whole of Oregon. Why, I will tell the gentleman and this house."

132 HISTORY OF PACIFIC NORTHWEST - OREGON AND WASHINGTON.

Mr. King (Mr. Adams yielding the floor) explained that he had asked the gentleman why he had not entered a protest against the claim asserted by Great Britain, if he believed that he had the right to the whole territory.

Mr. Adams (continuing), "I will endeavor to answer the gentleman according to his own idea, why I did not answer a protest. In the first instance, it was in a subordinate capacity that I acted as Secretary of State, under a most excellent man, whose memory I shall always retain with veneration, James Monroe, the President of the United States. And in the second place, when I held the office of President of the United States, I did make the protest in the convention itself. If the gentleman will read the convention, he will see a formal protest against the claim of Great Britain. The third article of the convention of 1818 is as follows:

"It is agreed that any country that may be claimed by either party on the northwest coast of America westward of the Stony Mountains, shall, together with its harbors, bays and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years fro the date of the signature of the present convention, to the vessels, citizens and subjects of both 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 claim of any power or state to any part of said country; the only object of the high contracting parties in that respect being to prevent disputes and differences.'

"Is that joint occupation or separate occupation? No such thing. It is non-occupation. The territory is to be free and open to all the world, to the vessels, citizens and subjects of the two powers for ten years; and this convention is expressly declared not to affect any claim of either of the two high contracting parties. Now please to observe this, for I mean to draw an argument from the wording here: 'nor shall it be taken to affect the claims of any other power,' * * 'the only object.' Now, I give my answer to the gentleman from Georgia, being to prevent disputes and differences among the contracting parties. That is the object, and that being the only object, and the article itself being confined to ten years, is there not a decided intimation that at the end of ten years differences would come again? And not only so, but a reservation of the rights of any other party? Who was that other party? Spain was; and that is a very clear and explicit admission that Spain had a right to that country, which was not affected. Well, this was in 1818. Now this convention was stipulated for ten years; and I desire this committee to observe this very expression, showing that both parties understood that this question as to their respective claims was not to be settled during the course of the ten years; but, at the expiration of that term, that they would come up again. It was equivalent to a full, plain claim to the whole territory, just as our Secretary is making it now; but it was said that both parties, not choosing to settle their differences, agreed, for ten years, that the country, with its harbors, bays, creeks and rivers, shall be open to the navigation of both parties, without either party claiming exclusive jurisdiction during that time. That was all.

"Now I come to the second convention of 1827. The first convention was for ten years; and I say it was not intended by the parties to be permanent. But there was a claim in arrears, which we were afterwards, as time should serve, and as circumstances should authorize, to assert and maintain. In the convention of 1827, please to observe the variation of the phrase of the article." (Here Mr. Adams stopped that day; but on the

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13th of April, 1846, having again the floor, he thus adverted to the convention of 1827): "What I wanted to show, when upon the floor of the House before, was the variation of expression between the convention of 1818, and that of 1827, in neither of which the world 'settlements' was used." (Mr. Adams then referred to the Nootka Sound Convention and the discussion upon it in the negotiations in 1818, and thus continued; "Well, sir, I make no question whatsoever, whether the treaty of Nootka Sound was abolished by war or not. I say that if Great Britain was entitled to make settlements by the treaty of Nootka Sound, in 1790, she has forfeited and abandoned that right by the omission of the word in the conventions of 1818 and 1827. In 1818, the convention was made between us and Great Britain. Great Britain claimed the right to make settlements for the limited term of ten years. That convention itself excluded it; it left out that word 'settlements,' copying the Nootka Sound Convention in all other respects, leaving the country open to navigation, commerce and trade with the savages. Why, sir, did they leave out the word 'settlements'? There was no reason assigned for leaving it out; but, if if had been included, we should have had the right of settlement as well as they. They forfeited it. They renounced it by omitting the word 'settlements' in the convention of 1818; and it continues to be omitted to this day. In 1827, when the convention came to be renewed, an indefinite time was assigned instead of ten years; and then again the reservation of rights of any third power was omitted, clearly because we had acquired all the rights of the third power whose rights were reserved before; and the word 'settlements' continued to be omitted. Great Britain having no rights under that convention to make any settlement whatever." (Congressional Globe, vol. 15, twenty-ninth Congress, first session, pages 340,341 and 664.)

CHAPTER XVIII.

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