Copyright 2000 - 2003 - Janine M. Bork
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Union County, OR AGHP
CHAPTER XIX.
(1831 - 1844.)
Negotiations Resumed Between Great Britain and the United States - Résumé of Status of Claimants - Presidential Election, 1844.
DURING the administration of President Jackson, Edward Livingston, Secretary of State, in his instructions (August 31, 1831) to Martin Van Buren, Minister to London, revives the question of settlement of the Oregon boundary. Their tone indicates that the United States government was not averse to the occupancy of territory by British subjects, in common with American citizens. The assertion of claim is not accompanied with arrogance; but confidence in the title of the United States to the whole territory is strongly marked. After referring to the convention of 1827, which by its language is, "to give time to mature measures which shall have for their object a more definite settlement of the claims of each party." Mr. Livingston proceeds: "This subject, then, is open for discussion; and, until the rights of the parties can be settled by negotiation, ours can suffer nothing by delay." Masterly inactivity thus admitted to be the policy of the national government, nothing was accomplished under those instructions.
The next efforts to adjust the Oregon boundary were during the administration of President Tyler. The request came from Great Britain. Lord Aberdeen, on the 18th of October, 1842, addressed instructions to Henry S. Fox, British Minister at Washington, to invite the American Secretary of State "to move the President to furnish the United States Minister at the Court of London with such instructions as will enable him to enter upon the negotiation of this matter with such person as may be appointed by her Majesty for that object; and you will assure him that we are prepared to proceed to the consideration of it in a perfect spirit of fairness, and to adjust it on a basis of equitable compromise."
Those instructions were communicated to the State Department on the 15th of November, 1842. Daniel Webster, Secretary, answered on the 25th, "that the President concurred entirely in the expediency of making the question respecting the Oregon Territory a subject of immediate attention and negotiation between the two governments. He had already formed the purpose of expressing this opinion in his message to Congress, and, at no distant day, a communication will be made to the Minister of the United States in London."
This suspended for the time formal negotiations. Mr. Webster resigned as Secretary of State, July 24, 1843, and was succeeded by Abel P. Upshur, who, October 9, 1842, addressed instructions to Edward Everett, American Minister at London. With the desire of compromise which actuated all his predecessors, Secretary Upshur said:
"The offer of the forty-ninth parallel of latitude, although it has once been rejected, may be again tendered, together with the right of navigating the Columbia river upon equitable terms. Beyond this, the President is not prepared to go. Nevertheless, you
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may propose or receive, subject to the approval of this government, any other terms of compromise which, in the progress of your discussions, may appear to promise satisfactory adjustment of this important question."
In February, 1844, Hon. Richard Pakenham, British Plenipotentiary, arrived in Washington with instructions to negotiate relative to the boundaries of the Oregon or Columbia Territory. On the 24th, he addressed a note to Secretary Upshur; their first conference took place on the 27th. On the next day, of gloomy memory, the explosion of the Paixhan gun on the United States steamer Princeton, caused the instant death of Secretary Upshur.
On the 6th of March, 1844, John C. Calhoun succeeded Secretary Upshur. Negotiations were resumed July 22d. Mr. Pakenham invited Mr. Calhoun's attention to the condition of the Oregon negotiation, so abruptly terminated by the death of his predecessor. MR. Pakenham renewed the former British offer of the Columbia river boundary, with the addition, "to make free to the United States any port or ports which the United States might desire either on the mainland or on Vancouver Island, south of latitude forty-nine degrees."
This offer Mr. Calhoun declined September 3, 1844, "on the ground that it would have the effect of restricting the possessions of the United States to limits far more circumscribed than their claims clearly entitle them." After demonstrating the validity of claim in our own proper right to the region drained by the Columbia by priority of discovery, priority of exploration and priority of settlement, he adds: "To these we have added the claims of France and Spain. The former was obtained by the Treaty of Louisiana, ratified in 1803, and the latter by the Treaty of Florida, ratified in 1819. By the former, we acquired all the rights which France had to Louisiana, 'to the extent it now has (1803) in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into by Spain and other states.' By the latter, his Catholic Majesty 'ceded to the United States all his rights, claims and pretensions' to the country lying west of the Rocky Mountains, and north of a line drawn on the forty-second parallel of latitude, from a point on the south bank of the Arkansas, in that parallel to the South Sea, that is, to the whole region claimed by Spain west of those mountains, and north of that line.
"The cession of Louisiana gave us undisputed title west of the Mississippi, extending to the summit of the Rocky Mountains, and stretching south between that river and those mountains to the possessions of Spain, the line between which and ours was afterwards determined by the Treaty of Florida. It also added much to the strength of our title to the region beyond the Rocky Mountains, by restoring to us the important link of continuing westward to the Pacific, which had been surrendered by the treaty of 1763, as will hereafter be shown.
"That continuity furnishes a
just ground for a claim of territory, in connection with those of discovery
ad occupation, would seem unquestionable. It is admitted by all that neither
of them is limited by the precise spot discovered or occupied. It is evident
that, in order to make either available, it must extend at least some distance
beyond that actually discovered or occupied; but how far, as an exact question,
is a matter of uncertainty. It is subject in each case to be influenced
by a variety of circumstances. In the case of an island, it has been usually
maintained in practice to extend the claim of discovery or occupation to
the whole; so, likewise, in the case of a river, it has been usual to extend
them to the entire region drained by it, more especially in cases of a
discovery
and settlement at the mouth, and emphatically so when accompanied by exploration of the river and region through which it flows. Such, it is believed, may be affirmed to be the opinion and practice in such cases since the discovery of this continent. How far the claim of continuity may extend in other cases is less perfectly defined, and can be settled only by reference to circumstances attending each. When this continent was first discovered, Spain claimed the whole by virtue of a grant of the Pope; but a claim so extravagant and unreasonable was not acquiesced in by other countries, and could not long be maintained. Other nations, especially England and France, at an early period contested her claim. They fitted out voyages of discovery, and made settlements on the eastern coast of North America. They claimed for their settlements, usually, specific limits along the coasts or bays on which they were formed, and generally a region of corresponding width across the entire continent to the Pacific Ocean. Such was the character of the limits assigned by England in the charters which she granted her former colonies, now the United States, when there was no special reason for varying from it.
"How strong she regarded her claim conveyed by these charters, and extending westward of her settlements, the war between her and France, which was terminated by the Treaty of Paris, in 1763, furnishes a striking illustration. That great contest, which ended so gloriously for England, and effected so great and durable a change on this continent, commenced in a conflict between her claims and those of France, resting on her side on this very right of continuity, extending westward from her settlements to the Pacific Ocean, and on the part of France on the same right, but extending to the region drained by the Mississippi and its waters, on the ground of settlement and exploration. Their respective claims which led to the war first clashed on the Ohio river, the waters of which the colonial charters in their westward extension covered, but which France had been unquestionably the first to settle and explore. If the relative strength of these different claims may be tested by the result of that remarkable contest, that of continuity westward must be pronounced to be the stronger of the two. England has had at least the advantage of the result, and would seem to be foreclosed against contesting the principle as against us, who contributed so much to that result, and on whom that contest and her example and pretensions, from the first settlement of our country, have contributed to impress it so deeply and indelibly.
"By the treaty of 1763, which terminated that memorable and eventful struggle, yielded, as has been stated, the claims and all the chartered rights of the colonies beyond the Mississippi. The seventh article establishes that river as the permanent boundary between the possessions of Great Britain and France on this continent. So much as relates to the subject is in the following words: 'The confines between the dominions of his Britannic Majesty and that part of the world (the continent of America) shall be fixed irrevocably by a line drawn along the middle of the river Mississippi from its source to the river Iberville; and from thence by a line drawn along the middle of this river and the Lakes Maurepas and Pontchartrain to the sea, etc.'
"This important stipulation,
which thus establishes the Mississippi as the line 'fixed irrevocably'
between the dominions of the two countries on this continent, in effect
extinguishes, in favor of France, whatever claims Great Britain may have
had to the region lying west of the Mississippi. It of course could not
affect the rights of Spain, the only other nation which had any pretense
of claim west of that river; but it prevented the right of continuity,
previously claimed by Great Britain, from extending beyond it, and transferred
it to France. The Treaty of Louisiana restored and vested in the United
States all the claims acquired by France, and surrendered by Great Britain under the provisions of that treaty, to the country west of the Mississippi, and among others the one in question. Certain it is that France had the same right of continuity, in virtue of her possession of Louisiana, and the extinguishment of the right of England by the treaty of 1763, to the whole country west of the Rocky Mountains, and lying west of Louisiana, as against Spain, which England had to the country westward of the Alleghany Mountains, as against France, with this difference, that Spain had nothing to oppose to the claim of France at the time but the right of discovery, and even that England has since denied; while France had opposed to the right of England, in her case, that of discovery, exploration and settlement. It is, therefore, not at all surprising that France should claim the country west of the Rocky Mountains (as may be inferred from maps) on the same principle that Great Britain had claimed and dispossessed her of the region west of the Alleghanies; or that the United States, as soon as they had acquired the right of France, should assert the same claim, and take measures immediately after to explore it, with a view to occupation and settlement. But since then we have strengthened our title by adding to our own proper claims and those of France the claims also of Spain, by the Treaty of Florida, as has been stated."
Mr. Calhoun proceeds to notice Spanish discoveries and their extent, contrasting them with cited english voyages, adding "that they (the Spanish navigators named) discovered and explored not only the entire coast of what is now called the Oregon Territory, but still further north, are facts too well established to be controverted at this day. But," says Mr. Calhoun, "it has been objected that we claim under various and conflicting titles, which mutually destroy each other. Such might indeed be the fact while they are held by different parties; but since we have rightly acquired both those of Spain and France, and concentrated the whole in our hands, they mutually blend with each other and form one strong and connected chain of title against the opposing claims of all others, including Great Britain."
This able and lucid state paper then dwells at length on the restoration of Astoria in 1818, refers to previous negotiations, and closes by referring to the claim of continuity, constantly gaining strength as time progresses, by the western states pouring their tide of emigration into the valley of the Columbia.
Sir R. Pakenham answered, on the 12th of September: "To the observations of the American Plenipotentiary respecting the effect of continuity to furnish a claim to territory, the undersigned has not failed to pay due attention; but he submits that what is said on this head may more properly be considered as demonstrating the greater degree of interest which the United States possess by reason of contiguity, in acquiring territory in that direction, than as affecting in any way the question of right."
In regard to the Spanish claim, Mr. Pakenham observes:
"It must, indeed, be acknowledged
that, by the treaty of 1819, Spain did convey to the United States all
that she had the power to dispose of on the northwest coast of America,
north of the forty-second parallel of latitude; but she could not, by that
transaction, annul or invalidate the rights which she had, by a previous
transaction, acknowledged to belong to another power. By the treaty of
October 28, 1790 (Nootka Convention), Spain acknowledged in Great Britain
certain rights in respect to those parts of the western coast not already
occupied. This acknowledgment had reference especially to the territory
which forms the subject of the present negotiation. If Spain could not
make good her own right to exclusive dominion over those regions, still
less could she
confer such a right on another power; and hence Great Britain argues that, from nothing deduced from the treaty of 1819 (Florida Treaty), can the United States assert a valid claim to exclusive dominion over any part of the Oregon Territory."
Mr. Pakenham thus labors the claim of Heceta and Captain Gray as to priority of discovery; and this aptly illustrates the whole dispatch:
"To one and to one only of these commanders can be conceded the merit of discovery. If Hecta's claim is acknowledged, then Captain Gray is no longer the discoverer of the Columbia river. If, on the other hand, preference is given to the achievement of Captain Gray, then Heceta's discovery ceases to be of any value. But it is argued that the United States represent both titles, the title of Heceta and the title of Gray; and, therefore, that under one or the other, it matters not which, enough can be shown to establish a case of prior discovery as against Great Britain. This may be true as far as relates to the act of the first seeing and first entering the mouth of the Columbia river; but if the Spanish claim to prior discovery is to prevail, whatever rights may thereon be founded are necessarily restricted by the stipulations of the treaty of 1790, which forbid a claim to exclusive possession.
"If the act of Captain Gray, in passing the bar and actually entering the river, is to supersede the discovery of the entrance, which is all that is to be attributed to Heceta, then the principle of progression or gradual discovery being admitted as conveying, in proportion to the extent of discovery or exploration, superior rights, the operations of Vancouver in entering, surveying and exploring, to a considerable distance inland, the river Columbia, would, as a necessary consequence, supersede the discovery of Captain Gray, to say nothing of the act of taking possession in the name of his sovereign, which ceremony was duly performed and authentically recorded by Captain Vancouver."
The British Plenipotentiary then ingeniously arrays the more thorough surveys and commercial enterprises of English navigators against the voyages of Spanish officers, the voyage of Mackenzie across the continent against the expedition of Lewis and Clark, and attempts to avoid the consequence of the restitution of Astoria in 1818. He then presents his view of the attitude of the question in the following bold and arrogant language:
"In fine, the present state of the question between the two governments appears to be this: Great Britain possesses, and exercises in common with the United States, a right of joint occupancy of the Oregon territory, of which right she can be divested with respect to any part of the territory only by an equitable partition of the whole between the two powers. It is for obvious reasons desirable that such a partition should take place as soon as possible; and the difficulty appears to be in devising a line of demarkation which shall leave to each party that precise part of the territory best suited to its interests and convenience."
Mr. Pakenham then justifies the British proposal of the Columbia river boundary:
"As regards extent of territory,
they would obtain acre for acre nearly half of the entire territory divided.
As relates to the navigation of the principal river, they would enjoy a
perfect equality of rights with Great Britain; and, in respect to its harbors,
it would be seen that Great Britain shows every disposition to consult
their convenience in that particular. On the other hand, were Great Britain
to abandon the line of the Columbia river as a frontier, and to surrender
her rights to the navigation of that river, the prejudice occasioned to
her by such arrangement would, beyond all proportion, exceed the
advantage accruing to the United States from the possession of a few more
square
miles of territory. It must be obvious to every impartial investigator of the subject that, in adhering to the line of the Columbia, Great Britain is not influenced by motives of ambition with reference to extent of territory, but by considerations of utility, not to say necessity, which cannot be lost sight of, and for which allowance ought to be made in an arrangement professing to be based on considerations of mutual convenience and advantage."
This admirable document, exhibiting so fearlessly how Great Britain progresses in her determined mission, "by considerations of utility, not to say necessity," to preserve to herself the elements of future wealth and grandeur, and at the same time an entire change of front in regard to British claim to Oregon, closes with the request that Mr. Calhoun will state the extent of the claims of the United States, and what proposal he has to offer for the adjustment of the controversy.
Mr. Calhoun answers, September 20, 1844, in that terseness of style and perspicuity of expression for which the great Carolinian was so pre-eminent:
"The undersigned does not understand the counter-statement as denying that the Spanish navigators were the first to discover and explore the entire coasts of the Oregon Territory; nor that Heceta was the first who discovered the mouth of the Columbia river; nor that Captain Gray was the first to pass the bar, enter its mouth and sail up its stream; nor that these, if jointly held by the United States, would give them the priority of discovery which they claim. On the contrary, it would seem that the counter-statement, from the ground it takes, admits that such would be the case on the supposition; for it assumes that Spain, in the Nootka Sound Convention, in 1790, divested herself of all claim to the territory founded on the prior discovery and explorations of her navigators, and that she could consequently, transfer none to the United States by the Treaty of Florida. Having put aside the claims of Spain by this assumption, the counter-statement next attempts to oppose the claims of the United States, by those founded on the voyages of Captains Cook and Meares, and to supersede the discovery of Captain Gray, on the ground that Vancouver sailed farther up the Columbia river than he did, although he effected it by Captain Gray's discoveries and charts. It will not be expected of the undersigned that he should seriously undertake to repel what he is constrained to regard as a mere assumption, unsustained by any reason. It is sufficient on his part to say that, in his opinion, there is nothing in the Nootka Sound Convention, or in the transaction which led to it, or in the circumstances attending it, to warrant the assumption. The convention relates wholly to other subjects, and contains not a word in reference to the claim of Spain. It is on this assumption that the counter-statement rests its objection to the well-founded American claim to priority of discovery. Without it there would not be a plausible objection left to them."
Mr. Calhoun follows with an examination of the counter-statement in detail, and thus disposes of Mr. Pakenham's innuendo against the claim of continuity as urged by the United States:
"The counter-statement intimates
an objection to continuity as the foundation of a right on the ground that
it may more properly be considered (to use its own words) as demonstrating
the greater degree of interest which the United States possessed, by reason
of contiguity, in acquiring territory in a westward direction. Contiguity
may, indeed, be regarded as one of the elements constituting the right
of continuity, which is more comprehensive, and necessarily associated
with the right of occupancy, as has been shown in previous statement (September
3d). It also shows that the laws which usage has
established in the application of the right to this continent give to the European settlements on its eastern coasts an indefinite extension westward. It is now too late for Great Britain to deny a right on which she has acted so long, and by which she has profited so much, or to regard it as a mere facility, not affecting in any way the question of right. On what other right has she extended her claims westwardly to the Pacific Ocean from her settlements around Hudson's Bay, or expelled France from the east side of the Mississippi river, in the war which terminated in 1763?"
He thus deals with the argument of Mr. Pakenham, that the Nootka Sound Convention affected the status of Louisiana, while that province was a Spanish possession:
"As to assumption of the counter-statement, that Louisiana, while in the possession of Spain, became subject to the Nootka Sound Convention, which, it is alleged, abrogated all the claims of Spain in the territory, including those acquired with Louisiana, it will be time enough to consider it after it shall be attempted to be shown that such a reality was the effect. In the meantime, the United States must continue to believe that they acquired from France, by the Treaty of Louisiana, important and substantial claims to the territory."
The United States' negotiator closes this document by joining issue with the British Plenipotentiary. With what remarkable clearness he exhibits what had now become the Oregon controversy!
"The undersigned cannot consent to the conclusion to which, on a review of the whole ground, the counter-statement arrives, - that the present state of the question is, that Great Britain possesses and exercises, in common with the United States, a right of joint occupancy in the Oregon Territory, of which she can be divested only by an equitable partition of the whole between the two powers. He claims, and he thinks he has shown, a clear title on the part of the United States to the whole region drained by the Columbia, with the right of being reinstated and considered the party in possession while treating of the title, in which character he must insist on their being considered in conformity with positive treaty stipulations. He cannot, therefore, consent that they shall be regarded during the negotiation merely as occupants in common with Great Britain. Nor can he, while thus regarding their rights, present a counter-proposal based on the supposition of a joint occupancy merely until the question of title to the territory is fully discussed. It is, in his opinion, only after such a discussion, which shall fully present the titles of the parties respectively to the territory, that their claims to it can be fairly and satisfactorily adjusted. The United States desire only what they may deem themselves justly entitled to, and are unwilling to take less."
In response to the invitation of Mr. Pakenham, that Mr. Calhoun should define the United States' claims to other portions of the territory, beyond the regions drained by the Columbia, he answers:
"They are derived from spain by the Florida Treaty, and are founded on the discoveries and explorations of her navigators, and which they must regard as giving them a right to the extent to which they can be established, unless a better can be opposed."
"This conclusive reply of Mr. Calhoun's terminated the correspondence. On the 24th of September, the last conference was held, at which Mr. Pakenham noted the following protest:
"That, reserving for future occasions
such observations as he might wish to present by way of explanation, in
reply to the statement last presented by the American Plenipotentiary,
he was for the present obliged to declare, with reference to the concluding
part of that statement, that he did not feel authorized to enter into discussion respecting the territory north of the forty-ninth parallel of latitude, which was understood by the British government to form the basis of negotiation on the side of the United states, as the line of the Columbia formed that of Great Britain. That the proposal which he had presented was offered by Great Britain as an honorable compromise of the claims and pretensions of both parties; and that it would of course be understood as having been made subject to the condition recorded in the protocol of the third conference held between the respective Plenipotentiaries in London, December, 1826."
After this illustration of British diplomacy, - to reserve the territory north of forty-nine degrees, and offer to negotiate for the remainder, and that too as the consideration of withdrawing from what she was willing to concede to the United States, - this exhibition of her "perfect spirit of fairness," her "basis of equitable compromise," upon which Lord Aberdeen invited Mr. Webster, while Secretary of State, to a renewal of negotiations, how eminently just was the remark, shortly afterwards made by him as a Senator of the United States: "He did not believe that Great Britain had any just right to any part of the country not tributary to the waters of the Hudson's Bay, and that side of the continent. All her pretended right was founded on the encroachments of the Hudson's Bay Company, and the usurpations, spoliations and diplomatic trickery of her government."
The Oregon question had as materially changed in another feature. Indifference had heretofore marked the actions of the American government and people. It now became a matter of national concern. The arena of its discussion had become vastly enlarged. No longer confined to the negotiations between diplomatic representatives of the respective governments, it had become the leading topic in the United States Congress and British Parliament. On the stump, orators maintained our title to the whole of Oregon, and protested against compromise. The people of each nation held up their hands in support of their respective governments. The question had arrived at its crisis; settlement or rupture could not much longer be delayed. Such was the change in the surroundings of the question. The gist of the controversy had been alike transformed. England from a passive or negative position, had assumed the aggressive. No longer restricting herself to questioning or denying the claims of the United States, and claiming herself to be in joint possession of the whole territory by force of a right to some portion, she stood up for the region south of that parallel bounded south and east by the Columbia river. True, even now she pretended to no greater affirmative right than when the controversy originated; but her more persistent denial of her rival's claims practically amounted to an assertion of exclusive right in herself. Her rights were of that nature that she could not abandon an occupancy extending throughout the territory, without the portion she wanted was segregated and set apart for her sole enjoyment.
History may admire the wisdom
which prompted the desire to acquire and maintain a foothold upon the Pacific
Ocean. Future generations may learn, that boldness of pretensions and pertinacity
in maintaining them are links of vast importance in claim to territory.
But it will, nevertheless, appear that Great Britain solemnly renounced,
in 1763, all claim in America to territory westward of the Mississippi
river; that the voyages of British navigators to any portion of the northwest
coast of America, subsequent to that date, conferred no legitimate claim
to any part of the coast, by right of discovery or settlement; that Spain
yielded to Great Britain no territorial rights by the Nootka Sound
Convention of 1790; that, although the right was conceded to make settlements in unoccupied territory north of the line of actual Spanish settlements, great Britain had renounced whatever rights she had thus secured by the two conventions with the United States of 1818 and 1827: 1st. By that of 1818, in covenanting not to do any act to the prejudice of the United States, or any other nation; 2d. By that of 1827, as the United States had then succeeded to Spain, by renewing that stipulation; 3d. By the omission of the word settlements in both of said conventions, which can only be construed as evidencing the fact that Great Britain herself did not believe that her pretensions to the territory derived any strength whatever from the Nootka Sound Convention; and if she so regarded it, then it was a formal and final renunciation of claim. That, apart from the fact that the forty-ninth parallel had been fixed as the north boundary of the Louisiana Purchase, in accordance with the supposed intent and meaning of the Treaty of Utrecht, there is not another act or fact, connected with the history of the Pacific coast, or of the territory abutting upon it, which attaches any exclusiveness of claim as connected with said forty-ninth parallel. True, that line as a boundary had been offered time and again; but the wherefore, except as a compromise, cannot be deduced from the history of discoveries, explorations or settlements made upon the coast or within the territory west of the Rocky Mountains.