The History of Washington State

The History of Washington
Chapter 16, Part I

 

By Holice, Pam, and Deb

Extra special thanks to Holice B. Young for transcribing this series of books!

 

 CHAPTER XVI.

SEARCHING OUR TITLE--TREATS OF THE VALIDITY OF OUR TITLE--ITS CONTESTANTS AND EFFORT FOR FINAL "QUIETING" BY TREATY WITH GREAT BRITAIN.

"Fifty-four Forty or Fight"
"A wordy war, with bitter ardor waged,
Fierce in discussion while the conflict raged,
A game of 'brag,' too oft to treachery too,
It stakes the region then so wild and new,
The hunters haunt the home of deer and stag,
Its roof the pine, each snowy peak its flag,
Emblem of truce and peace one day to be,
Of empire linking east with western sea."

--BREWERTON.

Having now, as a skillful engineer lays down his approaches, making gradual advances to the work he proposes to attack, environed out subject, so to speak, both by land and water, it if high time to take possession of such outworks of fact as may finally lead to the capture of the whole subject and encente of this our history of the State of Washington.

When a man purchases an estate, before entering, and making improvements his first anxiety is to ascertain the validity of his title and the security of the foundation on which he rests his claim. To do so thoroughly he must go to the fountain-head of ownership, examine records, ancient and modern, look into the liens and mortgages which might affect it, the sufficiency of the witnesses who certify to its testaments, and in all respects assure himself that it is perfectly sound and good, even though his quest should take him back to a period when, as the old English law quaintly expresses it, "the memory of man runneth not to the contrary."

States, like individuals, must hold their possessions under certain conditions fixed and regulated in their case and laid down

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in what is generally known as the "law of nations." It may e by right of first discovery, enforced by colonization; by peaceful purchase or similar condition, or by conquest of war permanently confirmed by treaty on cessation of hostilities. It becomes us, then, as citizens of this sovereign State and commonwealth of Washington, to know how our title to this fair domain on which we dwell was acquired, by what claimants opposed, their grounds of action and the legality of the manner in which our own title was finally assured and quieted. In so doing, however, we do not propose to try back to the period of which we have spoken--"when the memory of man runneth not to the contrary"--nor shall we enter into the intricate details of protocols, protests, arbitrations, and conferences, finally ending in that mutual agreement of the "high contracting powers" which we call a duly ratified treaty. Our search must be a skeleton at the best, dating back to the beginning of this century, when the situation of affairs on the Northwest coast may be briefly summed up as follows: The boundaries were unsettled and conflicting, the claimants and parties inaction being four--Russia, Spain, Great Britain, and the United States.

We will touch lightly, by way of preface, upon the claims of the two powers first named--Russia and Spain--as those soonest disposed of and least interesting to ourselves, because involving no particular conflict with American interests.

Russia demanded all the territory north of 51°, with its adjacent islands. This she founded on the discovery of Russian navigators. The limits of her claim will be found in the imperial grant issued by the emperor Paul to the Russian-American Fur Company in July of 1799. It is further strengthened by the declaration that the whole of the Pacific north of the latitude mentioned was "a closed sea," because completes bordered by Russian territory--a vexed question, entering into the sealing difficulties of our own day. Russia again asserts her claims, and that in no uncertain language, but autocratic as the Czar himself, in its imperial ukase of September 4th, 1821, which declares, "that the whole west coast of America north of the fifty-first degree, the whole east coast of Asia north of 45° 50'm 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

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miles of any of these coasts except in cases of extreme necessity."

It is not necessary to pursue the Russian title, as Mr. Seward's farseeing and most fortunate purchase of Alaska settled for a very reasonable sum, though counted extravagant at the time, all controversy with that nation.

Spain, a asserted by Chevalier de Onis, her Minster at Washington, defines her rights as follows:

"The right and dominion of the crown of Spain to the Northwest coast of America as high =as the Californias is certain and indisputable, the Spaniards having explored it as far as 47° in the expedition under Juan de Fuca in 1592, and in that under Admiral Fonté to 55° 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."

Evans tells us that this clear and concise enunciation was uttered by the chevalier :at a time when Spain was asserting title adversely to all other nations. It was the same that she had claimed for centuries."

These utterances interest us, because by the Treaty of Florida, dated February 22d, 1819, (which left the Saline river the western boundary of the United States), our southern boundary was defined by "a line drawn on the meridian from the source of the Arkansas River northward to the forty-second parallel, thence along the parallel to the Pacific Ocean (afterward adopted, January 12th, 1828, by treat with the republic of Mexico as the northern boundary of our sister republic--that is to day, the western and southern line of the United States as land down in the Florida treaty). By this solemn convention we became possessed of all the rights of Spain to any territory north of the said forty-second parallel----a cession which closes our search for title so far as this power is concerned, leaving only the conflicting claims of Great Britain and the United States to be considered; for with Russia we have no quarrel, and by the Florida treaty just referred to we become Spain's successor in interest, being clothed with all rights and powers growing our of her discoveries and explorations on the Northwest coast.

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The contestants in this long and bitter struggle for territorial supremacy were thus reduced to America and Great Britain, the other nations represented--Russia and Spain--having bartered their claims or rested in armed neutrality, more spectators of the fight. The tilting grounds were the cabinets of England and Washington; the reward of he victor, the virgin wilds, almost unbroken, of our own Northwest. The champions who stood forth, either a challengers or defenders, to lose fame or win renown in this diplomatic tourney, were the best and wisest among the statesman and publicists on both sides. The spectators before whom they encountered were the representatives of the courts of Christendom, and in a lesser degree, yet most interested in the result, every hunter and trapper, every axeman, settler or emigrant who loved his flag and remembered his nationality amid the then far-off wilds of our present State of Washington. With the knightly courtesy of "distinguished consideration" they dipped their pen lances in ink, using every feint and guard, every thrust and parry of treaty or protocol, protest, precedent, or proviso known to modern diplomacy to defeat their opponents. Musty documents were ransacked, ancient archives consulted; half-forgotten journals of mariners and adventurers long since passed away suddenly became of cast importance. The laws of nations were invoked, Vattel and Puffendorf quoted as never before, oftimes breathed a spirit of defiance and presumptions which sounded like bugle blasts inviting to battle. One and again did we tremble on the verge of actual war. Assumptions were made which, if adhered to, would have mobilized armies and sent fleets to every sea. But for the action of Scott, the fiery Harney would have opened a fire whose iron hail had speedily ended the harmless interchange of paper bullets. "Fifty-forty or fight" was not merely the slogan of a Presidential conflict, or the catch cry of an excited election; it "meant business;" it was the stern determination of a nation that knew its rights and meant to maintain them at any cost. It is true that we yielded too much--far too much--to Great Britain in that final settlement which fixed our present Northwestern boundary; but treaty-makers are inclined to be conservative, and err, unless fresh from some recent battle-field, upon the side of conservatism. But history repeats itself, and America may

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afford to patiently bide her time, well assured that the arbitrations of peace or the accidents of war will sooner or later give to the United States the limits assigned by nature and nature's God--boundaries whose fated termini are the billows that wash the shores of the North American continent and have those out-lying island which rightfully belong to us as the sentinels and guardians of our coast.

Let us, then, proceed to trace, as a general gallops down the line and reviews the battalions of his army, the sequence of events which marked the ebb and flow of this diplomatic war.

We have now to deal with England, ever a most determined antagonist, fighting for every foot of the territory in dispute, conceding nothing save under protest, exhausting technicalities, and eve when visibly beaten yielding ungraciously, making her concessions a matter of favor rather than of right; giving ground like an experienced fencer, who bides his time and only waits his opportunity to make a more deadly lunge. Her proceedings in the open court of national arbitration and adjustment were as fruitful in arrogant pretensions, false pretenses and assumed promises as her more occult methods were unworthy, being conducted through the medium of the elaborate systems of her secret agents, the Hudson's' Bay and Northwest Fur companies.

While touching rather delicately upon the vexed question of "original right and first discovery," where her own legislators must have perceived the weakness of their case, Great Britain seemed inclined to trust herself to the oft-repeated legal assurance that "possession is nine tenths of the law," an argument for the maintenance of which her agents already referred to had most industriously prepared the way.

England did not, it should be remembered, assert an exclusive right to any portion of the Northwest coast; at the same time, she had no idea of relinquishing any advantage which might be founded upon the voyage of Drake, Cavendish, Cook, or Vancouver to our coast, or the inland explorations of the indomitable Sir Alexander Mackenzie. These men had displayed that historic flag which the poet tells us has

"Braved a thousand years the battle and the breeze." and with more or less of ceremony had taken possession in the name of the British crown, ofttimes regardless of the fact that a

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newer ensign had seen its stars reflected in those waters before their later visits, and forgetful of previous footsteps in their twice-trodden inland paths. Her 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, Great Britain among the rest, from all the rights of settlement in the district claimed by the Untied States. The pretensions of Great Britain, on the contrary, tend to the mere maintenance of her own rights in resistance to the exclusive character of the pretensions of the Untied States."

Evans puts the situation so clearly and forcibly that we despair of improving upon it, and so quote at length, as follows:

"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 indefeasiblity of an adverse title, she could elect whether she would be ousted. The situation is thus defined: 'While we have not the title, we want the possession; in the mean time, we do not admit that your title is any better than ours--in other words, just such a title as in all ages of the world might has made right.'"

To this claim the United States opposed a twofold right: We had discovered the Columbia River when Gray sailed into it and informed Vancouver of its existence; Lewis and Clarke had explored its banks ands tributaries; Americans had settled beside its waters. "It is a law of nature, universally recognized, that the discovery of a river followed by occupancy secures the right to the territory watered by it and its tributaries." Hence we claimed the country lying west of the Rocky Mountains between 42° and 51° north latitude, subject, of course, to the claim of Spain, and the rewards of whose previous explorations became ours by the Treaty of Florida. Where is the flaw in our premises, the missing link in our claim of evidence to a good and sufficient

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Title? But we strengthen this by our additional pretensions as "successors to France" by virtue of the Louisiana purchase in 1803, "by which we acquired the claim of continuity to the territory from the Mississippi westward to the Pacific, 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 of Canada." The doctrine of continuity has been recognized as a strong element of territorial claim, and its application universal in 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 was waged, terminated by treaty in 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 to continuity west of that river. So we, as successors to both France and the rights acquired b y treaty with Spain, backed by first discovery and occupation of the Columbia and its tributaries (which must to any fair and legal mind give a perfect title to the United States of the whole territory in dispute), were, and ought to be, seized of even more than the Northwestern territory we now possess.

With a view to settle this vexed question, negotiations were attempted in 1807, which, as far as we were concerned, did not touch our territory, and, beyond a British effort to beguile us into trouble with Spain, came to naught. Another effort was made in 1814. The United States offered to settle on the basis of 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, or to the territory belonging to or claimed by either party on the continent of America to the westward of the Stony Mountains. This would have been acceded to, but England wanted the right of navigation of the Mississippi River from British America to the Gulf of Mexico. This was asking too much, so that item of the Treaty of Ghent failed to materialize. It only touched our local interests in a clause which covered the rendition of Astoria.

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It is more than probable, if the real value of this Northwest territory had been known to our statesmen--as it was, through the large returns of its fur trade, patent to the British--there would have been less apathy and more decided action on our part. As it was, we treated it as a matter of little accounts, and permitted England to establish a kind of occupancy which, under other circumstances, might have brought about an American emigration that would have more than balanced the influence of the fur companies' employees, and prepared the way to its speedy settlement and Americanization. Still another attempt made, but again this demand for the navigation of the Mississippi stood in the way. We were represented by two able men--Gallatin and Rush--who went over the old ground of right of Gray's discovery, etc., but made the mistake of not asserting an exclusive right to the territory in dispute. Agreement being impossible, compromise was resorted to, and the unfortunate Treaty of Joint Occupancy, signed October 20th, 1818 "determined the boundaries of the United States westward to the Rocky Mountains."

The following article of this treaty will give its general scope as influencing our own coasts of the Northwest:

"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 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 powers may have to any part of the said country."

It seems at this day a mystery, unless our Government believed that "the game was not worth the candle," that we should have consented to such a treaty, which, whatever might have been its temporary conveniences, seems to admit a doubt of our rights to claim the whole as absolutely belonging to the United States. At all events, it gave England just what she desired--an opportunity to make the territory British in sentiment, by encouraging settlers of her own nationality.

It is simply impossible within the scope of this history to

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enter into the details of a controversy so complex and protracted. It might be styled the thirty years' war of peaceful negotiation. As for the substantial results of the conflict, we are inclined to believe that though we hold nearly all that we claimed, Great Britain, who came into court without a case, gained the verdict--at least she succeeded, between bullying and cajoling, in obtaining Vancouver's Island, all of which should have been our own. In 1826 Henry clay, then Secretary of State, says in his instructions to Albert Gallatin, our Minister at the court of Saint James:

"Nor is it conceived that Great Britain has or can make out even a colorless title to any portion of the northern coast." By the renunciation and transfer contained in the treaty with Spain in 1819, our right extended to the sixtieth degree of latitude." Later on he tells Mr. Gallatin that "our offer of the forty-ninth parallel was conceived ina genuine spirit of concession and conciliations, and it was our ultimatum, and he might so announce it." This the British negotiators rejected, and then like a trumpet blast comes the declaration which should have been maintained throughout: "Say to Great Britain 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 effect, have it stated that it was done by express direction of the President."

 

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