The New York Herald Newspaper, December 15, 1845, Page 1

THE NEW YORK HE Vol. XI., No. 345—Whole No. 4197 The Important Oregon Correspondence. We give the close of the Oregon correspondence in the annexed interesting letters of Messrs. Paken- ham and Buchanan, These two documents are the most important of all that have yet been given, as they contain the absolute refusal of Mr. Pakenham to accept the 49th degree, as offered by Mr. Polk; the withdrawal of the offer by Mr. Buchanan, and the assertion of the American claim to the ‘ whole or | none.” (R. Py : Wasuineton, July 29, 1845. Notwithstanding the pyplix discussion which the subject has already undergone, the undersigned, her Britannic Majesty’s envoy extraordinary and minister plenipotentiary, feels obliged to place on record a few observations in reply to the statement (marked J. B.,) which he had the honor to receive, on the 16th of this month, from the hands of the Secretary of State of the United States, terminati with a proposition on the part of the United States for the settlement of the renee question. In this paperitis stated, that “the title of the United States to that portion of the Oregon territo- ty between the valley of the Columbia and the Rus- sian line, in 64 degrees 40 min: north latitude; is re- corded in the Florida treaty. Under this treaty, dated on 22d February, 1819, Spain ceded to the United States all her rights, claims, and pretensions to any territories west of the Rocky mountains, and north of the 42d parallel of latitnde.” “We con- tend,” says the Secretary of State “ that at the date of this convention, Spain had a good title, as against Great Britain, to the whole Oregon territory, and, if this be established, the question is then decided in favor of the United States,” the convention between Great Britain and Spain, signed at the Escurial, on the 28th October, 1790, notwithstanding. “Tf” says the American plenipotentiary, ‘it should anges that this treaty was transient in its very nature ; that 1t conferred upon Great Britain no rij hy but that of merely trading with the Indians, whilst the country should remain unsettled, and making the necessary establishments for this pur- pose ; that itdid not interfere with the ultimate sovereignty of Spain over the territory ; and above all, that it was srnulied by the war between Spain and Great Britain, in 1796, and has never since been fenewed by the parties, then the British claim to any portion of the territory will prove to be desti- _tute of foundation.” The undersigned will endeavor to show, not only that when Spain concluded with the United States, the treaty of 1819, Seen called the Florida treaty, the convention concluded between the former pore and Great Britain, in 1790, was considered by the parties toit to be still in force ; but even that, ifno s@ch treaty had ever existed, Great Britain would stand, with reference toa claim to the Ore- ‘on terfitory, in a position at least as favorable as the United States. . The treaty of 1790, is not appealéd to by the Bri- tish government, as the American plenipotentiary seems to suppose, as their “ main reliance” in the presen discussion ; itis appealed to to show that, yy thetreaty of 1819, by which “Spain ceded to the United States all her rights, claims, and preten- sions to any territories west of the Rocky moun- tains, and north of tha 42d parallel of latitude,” the United States acquired no right to exclusive do- minion over any part of the Oregon territory. The treaty of 1790 embraced, in fact, a variety of objects. Jt partook in some of its stipulations of the nature of a commercial convention ; in other re- spects, it must be considered as an acknowledgment of existing rights—an admission of certain princi- ples of international law not tobe revoked at the pleasure of either party, or to be set aside by aces- sation of friendly relations between them. Viewed in the former light. its stipulations might have been considered as caticelled in consequence ot the war which subsequently took place between the contracting parties, were it not that by the trea- ty concluded at Madrid, on the 28th August, 1814, it was declared that all the treaties of commerce which subsisted between the two nations (Great Britain and pte in 1796 were thereby ratified and confirmed. In the latter point of view, the restoration of a slate of peace was of itself sufficient to restore the admissions contained in the convention of 1790 to their full original force and vigor. here are, besides, very puvitive rcasone for con fas bee Spain did hot consider the stipulations of the Nootka convention to have been revoked by the war of T' so as to require, in order to be binding on her, that they should have been express- ly revived or renewed on the restoration of peace between the two countries. Had Spain considered that convention to have been annulled by the war; in other words, had she considered herself restored to her former position and pretensions with respect to the exclusive dominion over the unoccupied fod ofthe North American continent, it 1s not to e imagined that she would have passively submit- ted to see the contending claims of Great Britain and the United States to a portion of that territory the subject of negotiation and formal diplomatic transactions between those two nations. Itis, on the contrary, from her silence with re- spect to the continued occupation, by the British, of their settlements inthe Columbia ‘territory, sub- sequenily to the convention of 1814, and when as yet there had been no transfer ot her rights, claims, or pretensions to the United States, and from her silence also while important negotiations respecting the Columbia territory, incompatible altogether with her ancient claim to exclusive dominion, were in progress between Great Britain and the United States, fairly to be inferred that Spain considered the stipulations of the Nootka convention, and the principles therein laid down, to be still in force. But the American plenipotentiary goes so far as to say that the British government itself had no idea in 1818, that the Nootka Sound Convention was then in force, because no reference was made to it on the part of England during the negotiation of that year, on the Oregon question. In reply to this argument, it will be sufficient for the undersigned to remind the American plenipo- tentiary that in the year 1818 noclaim, as derived from Spain, was, or could be put forth py the United States, seeing that it was not until the followin, ear (the year 1819) that the treaty was conclude by which Spain transferred to the United States her rights, claims, and pretensions to an’ west of the Rocky Mountains, and nort! parallel of latitude. F Hence, it is obvious, thatin the year 1818, no oc- casion had arisen for appealing to the qualified na- ture of the rights, claims, and pretensions so trans- ferred—a qualification imposed, or at least recog- nised, by the convention ot Nootka. The title ofthe United States to the valley of the Columbia, the American plenipotentiary observes, is older than the Florida treaty of February, 1819, and exists independently of its provisions. Even supposing, then, that the British construction of the Nootka Sound Convention was correct, it could not ap} 7, to this portion of the territory in dispute. tr e undersigned must be permitted respectfully to inquire, upon what principle, unless it be upon the principle which forms the foundation of the Nootka Convention, could the United States have acquired a title to any part, of the Oregon territory, previously to the treaty of 1819, and independently of its provisions? By discovery, exploration, set- tlement, will be the answer. “ But, says the American plenipotentiary, in ano- ther part of his statement, the rights of Spain to the west coast of America, as far north as the 61st de- ree of latitude, were so complete as never to have fees teriously questioned by any European nation. They had ‘been maintained by Spain with the most vigilant jealousy, ever since the discovery of the American continent, and had been acquiesced in by ali European powers. They had been ad- mitted even by Russia; and that, too, under a sove- reign peculiarly tenacious of the territorial rights of her empire, who, when complaints had been made to the court of Kussia against Russian subjects, for violating the Spanish territory on the northwest coast of America, did not hesitate to assure the King of Spain that she was extremely sorry that the repeated orders issued to prevent the subjects of Russia {rom violating, in the smallest degree, the territory eons to another power, should have been disobeyed, In what did this alleged violation sist? Assuredly in some attempted ry, exploration, ¢ baepeonli At that time, Russia st in precisely position with’relerence to the Feces apes Spain as the United States ; and any acts in contra- vention of those rights, whether emanating from Ruseia or trom the United States, would necessurily be judged by one and the same rule. How, then, can it be pretended that dcts which in the case of Russia, were considered as criminal violations of the Spanish territory, hould in the case of citizens of the United States, be appealed to as constituting @ valid title to the territory aflected by them ; and yet from this inconsistency the American plenipotentiary cannot escape, if he persists in con- sidering the American title to have been perfected by digecysints Xp Oration, and settlement, when as yet Spain had made no transfer of her rights, if, to use his own words, ‘that title is older thun’the Florida treaty, and exists independently of its pro- Visions. According to the dow territories of the 42d of territory con- acts of discove- e of exclusive dominion, | NEW YORK, MO NG, DECEMBER 15, 1845. the exploration of Lewis and Clarke, and the esta- blishment founded at the mouth of the Columbia, must be condemned as encroachments on the terri- torial rights of Spain. According to the Copnelte-eeenct pie by which dis- covery, exploration, and settlement are considered | as giving a valid claim to territory, those very acts are referred to in the course of the same paper as Pert a complete title in favor of the United tates. _ Besides, how shall we reconcile this high estima- tion of the territorial rights of Spain, considered in- dependently of the Nootka Sound convention, with the course observed by the United States in their diplomatic transactions with Great Britain, re viously to the conclusion of the Florida treaty ? The claim advanced for the restitution of Fort rge, under the first article of the treaty of Ghent; the arrangement concluded for the joint occupation of the Oregon territory by Great Britain and the Uni- ted States; und, above all, the proposal actually meade on the part of the United States for a partition ing | of the Oregon territory ; all which transactions took place in the year 1818, when, as yet, Spain had made no transfer or cession of her rights—appear to $e as little reconcilable with any regard for those rights while still vested in Spain, as the claim founded on discovery, exploration, and settlement accomplished previously to the transier of those rights to the Uni- ted States. 4 Supposing the arrangement proposed in the year 1818, or any other arrangement for the partition of the Oregon territory to have been concluded in those days, between Great Britain and this country, what would, in that case, have become of the exclusive rights of Spain ? ‘ here would have been no refuge for the United States but inan appeal to the principles of the Noot- ka convention. _ To deny, then, the validity of the Nootka conven- tion, is toproclaim the illegality of any title founded on discovery, exploration, or settlement, previous to the conclusion of the Florida treaty. * a appeal to the Florida treaty as conveying to the United States any exclusive rights, is to attach acharacter of encroachment and of violation ot the rights of Spain to every act to which the United States appealed in the negotiation of 1818, as giving them a claim to territory on the northwest coast. These conclusions appear to the undersigned to be irresistible. " 5 he United States can found no claim on discove- ry, exploration, and settlement, effected previously to the Florida treaty, without admitting the princi- ples of the Nootka convention, and the consequent validity of the parallel claims of Great Britain found- ed on like acts; nor can they appeal to any exclusive right as acquired by the Florida treaty, without up- setting all claims adduced in their own proper right, by reason of discovery, exploration, and settlement, antecedent to that arrangement. The undersigned trusts that he has now shown that the convention of 1790, (the Nootka Sound con- vention,) has continued in full and complete force up to the present moment— 4 By reason, in the first place, of the commercial character of some of its Previsions, as such express- ly renewed by the convention of August, 1814, be- ween Great Britain and Spain: By reason, in the next place, of the acquiescence of Spain in various transactions to which It is not to be supposed that that power would have assented, had she not felt bound by the provisions of the con- vention 1m question t And, thirdly, by reason of repeated acts of the Government of the United States previous to*the conclusion of the Florida treaty, manifesting ad- herence to the principles of the Nootka Convention. ee at lerst dissent from the exclusive pretensions of pain. P : } Having thus replied, and he hopes satisfactorily, to the observations of the American plenipotentiary with respect to the effect of the Nootka Sound Con- vention and the Florida Treaty, as bearing upon the subject of the present discussion, the undersigned must ‘endeavor to show that even if the Nootka Sound Convention had never existed, the position of Great Britain in regard to her claim, whether to the whole or to any particular portion of the Oregon ae is at least as good as that of the United tates. This branch of the subject must be considered, first, with reference to principle—to the right of either party, Great Britain or United States, to explore or make settlements in the Oregon Terri- tury without, violation of the rights of Spain; and next, supposing the first to be decided aflirmatively, with reference to the relative value and importance of the acts of discovery, exploration, and settle- ments effected by each, — Nez _As relates to the question of principle, the under- signed thinks he can furnish no better argument than that contained in the following words, which he has already once quoted from the statement of the American plenipotentiary. “The title of the United States to the valley of the Columbia, is older than the Florida treaty of February, 1819, under which the United States ac- quired all the’ rights of Spain to the North-west coast of America, and exists independently of its provisions.” And again—‘* the title of the United States to the entire region drained by the Columbia River and its branches, was perfect and complete before the date of the treaties of joint occupancy of October, 1818, and August, 1827.” The title thus referred to, must be that resting on discevery, exploration and settlement. If this title, then, is good; or rather was good, as against the exclusive pretensions of Spain, pre- viously to the conclusion of the Florida treaty, so must the claims of Great Britain resting on the same grounds, be good also. i Thus, then, it seems manifest that, with or with- out the aid of the Nootka Sound Gonvention, the claims of Great Britain, resting on discovery, explo- ration, and settlement, are, in point of principle, equally valid with those of the United States, Let us now see how the comparisen will stand when tried by the relative value, importance, and authenticity of each. Rejecting previous discoveries north of the forty- second parallel of latitude as not sufficiently authen- tieated, it will be seen on the side of Great Britain, that, in 1778, Captain Cook discovered Cape Flat- very, the southern entrance of the Straits of Fuca.— Cook must also be considered the discoverer of Nootka Sound, in consequence of the want ot au- bsatally in the alleged previous discovery of that port by Perez. _ In 1787, Captain Berkeley, a British subject, in a vessel under Austrian colors, discovered the Straits of Fuca. : In the same year, Captain Duncan, in the shi “Princess Royal,” entered the Straits, and trade: at the village of Classet. In 1788, Meares, a British subject, formed the establishment at Nootka, which gave rise to the memorable discussion with the Spanish Govern- ment, ending in the recognition, by that power, of the right of Great Britain to form settlements in the unoccupied parts of the North-west portion of the American continent, and in an engagement, on the (ae of Spain, to reinstate Meares in the possession rom which he had been ejected by the Spanish commanders. In 1792, Vancouver, who had been sent from England to witness the fulfillment of the above- mentioned engagement, and to effect a survey of the North-west Coast, departing from Nootka Sound, entered the Straits of Fuca; and, alter an accurate survey of the coasts and inlets on both sides, discovered a passage northwards into the Pacitic by which he returned to Nootka—having thus cireumnavigated the island which now bears his name. And here we have, as far as relates to Vancouver’s Island, as complete a case of discovery, exploration, and settlement, as can well be pre- sented, giving to Great Britain, in any arrangement that may be made with et to the territory in dispute, the strongest possible claim to the exclusive possession of that island. While Vanceuver was prosecuting discovery and exploration by sea, Sir Alexander Mackenzie, a mined in the Northwest Company, crossed the ky mountaine, discovered the head waters of the river since called Frazer’s river, and, followin, for some time the course of that river, effected a sage to the continent of America from sea to sea in the sea—being the first civilized man who traversed | those latitudes. On the return of Mackenzie to | Canada, the Northwest Company established tra- ding posts in the country to the westward of the Ht a pant Tn 1806 an , Tespectively, the same company | established posts on the Tacoutché, Teasé, ambie | Columbia. In_the year 1811, Thompson, the astronomer of | the Northwest Company, vered the northern head waters of the Columbia, and, following its course till joined by the rivers previously discovered by Lewis and Clarke, he continued his journey to the Pacific. From that time until the year 1818, when the ar- rangement for the joint occupancy of the territory was concluded, the Northwest Company continued to extend their operations throughout the Oregon territory, and to “oecupy,” it may be said, as far as occupation can be effected in regions so inaccessible estitute of resources, While all this was passing, the fellowing events occurred, which constitute the American claim in | their own proper right. In 1798, Gray entered the mouth of the Columbia tiver. | | In the Rocky mointains, and, discovering a branch of | the Columbia river, followed it until they reached | part, but to the whole, is limited to a right of joint and the convention published until the 30th of Janu- | the ocean. i : {n 1811, the sadly pose or settlement of Astoria was established at the mouth of the Columbia, on the northern side of that river. 2 |. This post or settlement passed during the last war into British hands by the voluntary act of the per- | sons in charge of it—a fact most clearly estabhish- | ed. It was restored to the United States in 1818, with certain well-authenticated reservations; but it | was never actually re-occupied by American citi- | zens, having, from the moment of the original trans- jects. 5 These are the acts of discovery, exploration, and settlement, referred to by the United States as giv- ing them aclaim to the valley of the Columbia, in their own proper right. The British go them in the most liberal sense, and to give them the utmost value to which they can in fairness be enti- tled; but there are circumstances attending each and all of them, which must, in the opinion of any im- partial investigator of the subject, take from them a great deal of the effect, which the American nego- tiators assign to them as giving to this country a claim to the entire region drained by the Columbia and its branches. ri ‘ In the firat place, as relates to the discovery of Gray, it must be remarked that be was a private na- vigator, sailing ¢rincipally for the purposes of trade, which fact establishes a wide difference, in a nation- al point of view, between the discoveries accom- plished by him and those effected by Cook and Van- couver, who sailed in ships of the royal navy of Great Britain, and who were sent to the north-west coast for the express purpose of exploration and dis- covery. 'n the next place, it is a circumstance not to be lost sight of, that it was not for several years follow- ed up by any act which could give it value in a na- tional point of view: it was not in truth made known to the world either by the discoverer inimselt or by his government. So recently as the year 1826, the with great correctness, in one of their reports, that “respecting the mouth of the Columbia river, we know nothing of Gray’s discoveries but through Bri- tish accounts.” In the next place, the connexion of Gray’s dis- covery with that of Lewis and Clarke is interrupted by the intervening exploration of Lieut. Broughton, of the British surveying ship “Chatham.” With respect to the expedition of Lewis and Clarke, it must, on a close examination of the route pursued by them, be confessed that, neither on their outward journey to the Pacific, nor on their home- ward journey to the United States, did they touch upon the head waters of the principal branch ot the Columbia river, which lie far to the north of the parts of the country traversed and explored by them. Thompson, ef the British Northwest Company, was the first @vilized person who navigated the northern, in reality the main, branch of the Colum- Hs or traversed any part of the country dramed yy it. and Clarke made their way to the main stream of that river, which they reached at a point distant, it is believed, not more than two hundred miles from the point to which the river had already been ex- plored by Broughton. y . 4 These facts, the undersigned conceives, will be found sufficient to reduce the value of Lewis and Clarke’s Sais on the Columbia to limits which would by no means justify a claim to the whole valley drained by that river and its branches. As to settlement, the qualified nature of the rights devolved to the United States by virtue of the resti- tution of Fort Astoria has aready been pointed out. It will thus be seen, the undersigned confidently believes, that on the grounds of discovery, explora- tion, and settlement, Great Britain has nothing to fear ffom a comparison of her claims to the Oregon territory, taken as a whole, with those of the Uni- ted States: That reduced to the valley drained by the Colum. ina, the facts on which the United States rest their case are far from being of that complete and exclu- sive character which would justify a claim to the whole valley of the Columbia; and : ‘That, especially as relates to Vancouver’s island, taken by itself, the preferable claim of Great Britain, ia every point of view, seems to have been clearly demonstrated. ‘ After this exposition of the views entertained by the British government respecting the relative value and importance of the British and American claims. the American plenipotentiary will not be surprised to hear that the undersigned does not feel at liberty to accept the proposal offered by the American pleni- potentiary for the settlement of the question. This proposal, in fact, offers less than that tender- tiation of 1826, and declined by the British govern- ment. _ On that occasion it was proposed that the naviga- tion of the Columbia should be made free to both patties, Sitiaie sie z On this nothing is said in the proposal to which the undersigned has now the honor to reply ; while, with respect to the proposed freedom of the ports on Vancouver’s island south of latitude forty-nine, the facts which have been appealed to in this paper, as giving to Great Britain the strongest claim to the possession of the whole island, would seem to de- prive such a proposal of any value. 3 ‘The undersigned, therefore, trusts that the Ameri- can plenipotentiary will be prepared to offer some further proposal for the settlement of the Oregon question more consistent with fairness and equity, and with the reasonable expectations of the British government, as defined in the statement (marked D) which the undersigned had the honor to present to the American plenipotentiary at the early part of the present negotiation. " ‘ The undersigned, British plenipotentiary, has the honor to renew to the honorable James Buchanan, Secretary of State and plenipotentiary of the Uni- ted States, the assurance of his high consideration. R. Pakenuam. Hon. James Bucnanan, &c. J.B. 2.) DeparTMENT OF State, i Washington, August 30, 1845. _ The undersigned, Secretary of State of the Un’ ted States, deems it his duty to make some obser- vations in reply to the statement of her Britannic Majesty’s envoy extraordinary and minister pleni- poraparys marked R. P., and dated 29th Jrly, . Preliminary to the discussion, it is necessary to fix dur attention upon the precise question under consideration, in ‘the present stage of the negotia- tion. This question simply is, were the titles of on and the United States, when united by the Florida treaty on the 22d of February, 1819, good as against Great Britain, to the Oregon territory as ioe gee asthe Russian line, in the jatitude of 54° whole territory now belongs to the United States. The undersigned again remarks that it is not his purpose to repeat the argument by which his pre- decessor, Mr. Calhoun, has demonstrated the Ame- rican title “‘to the entire region drained by the Co- lumbia river and its branches.” ir its force. ¥ it 18 contended on the part of Great Britain, that He will not thus ttle subject to the terms and conditions of the Noot- ka Sound convention, concluded between Great Britain and Spain, at the Escurial, on the 28th Octo- ber, 1790. z Tn opposition to the argument of the undersigned contained in hia statement marked J. B., maintain- ing that this convention had been aunulled by the war between Spain and Great Britain, in 1796, and has never since been revived by the parties, the Bri- tish plenipotentiary, in his statement marked R. P., has taken the following positions ;— 1. “ That when § States the treaty of 1819, commonly called the Flo- rida treaty, the convention concluded between the former power and Great Britain, in 1790, was con- sidered by the parties to it to be still in force.” And 2. * But that, even it no such treaty had ever existed, Great Britain would stand, with reference to a claim to the Oregon territory, in a position at least as favorable as the United States.” The undersigned will tollow, step by step, the ar- ument of the British plemipotentiary in support of these propositions. The British plenipotentiary states ‘that the trea- ty of 1790 isnot appealed to by the British govern- ment, as the American plenipotentiary seems to suppose, as their ‘ main reliance’ in the present dis- cussion;” but to show that, by the Florida treaty of 1819, the United States acquired no right to ex- clusive dominion over any part of the Oregon ter- nitory. : The undersigned had believed that ever since 1826, the Nootka convention has been regarded by the British government as their main, if not their only reliance. The very nature and peculiarity of their claim identified it with the construction which they have imposed upon this convention, and neces- | sarily excludes every other basis of title. What but | to accord with this construction could have caused | Messrs. Huskisson and Addington, the British com- | missioners, in specily ing, their title on the 16th De- cember, 1826, to declare ‘that Great Britain claims fer or sale, continued to be occupied by British sub- | government are disposed to view | American plenipotentiaries in London remarked, | it was by a tributary of the Columbia that Lewis ed by the American plenipotentiaries in the nego- | It they were, it will be admitted that this | the United States acquired and hold the Spanish | in concluded with the United | 1805, Lewis and Clarkeeflected a passage across | mo exclusive sovereignty over any portion of that | four months | territory. Her present claim, not in respect to any occupancy in common with other States, leavin, the right of exclusive dominion in abeyance.” An again: “By that convention (of Nootka) it was agreed that all parts of the northwestern coast of America, not already occupied at that time by either of the contracting parties, should thencetorward be | equally open to the subjects of both for all purposes of commerce and settlement—the sovereignty re- maining in abeyance.” But on this subject we are not left to mere inferences, however clear. The British commissioners, in their statement from which the undersigned has just quoted, have virtu- ally abandoned any other title which Great Britain | may have previously asserted to the territory in dis- pute, and expressly declare “that whatever that ti- tle may have been, however, either on the part of | Great Britain or on the part of Spain, prior to the convention of 1790, it was thenceforward no longer | to be traced in vague narratives of discoveries, se- | veral of them admitted to be apocryphal, but in che | text and stipulations of that convention itself.” | And again, in summing up their whole case, they | say i— t Tdmitung that the United States have acquired | | all the rights which Spain possessed up to the treaty of Florida, either in virtue of discovery, or, as is pretended, in right of Louisiana, Great Britain maintains that the nature and excent of these rights, as well as the rights of Great Britain, are fixed and defined by the convention of Nootka,” &c. &c. ‘The undersigned, after a careful examination, can discover nothing in the note of the present British plenipotentiary to Mr. Calhoun, of the 12th Septem- | Re last, to impair the force of these declarations |} and admissions of his predecessors. On the con- | trary, its general tone is in perfect accordance with | them. | Whatever may be the consequences, then, wheth- er for good or tor evil—whether to strengthen or to | destroy the British claim—it is now too late for the British government to vary their position. If the | Nootka convention confers upon them no such | rights as they claim, they cannot at this late hour go behind its provisions, and set up claims which, in 1826, they admitted had been merged “in the text and stipulations of that convention itself.” 4 The undersigned regrets that the British plenipo- | tentiary has not noticed his exposition of the true | construction of the Nootka convention. He had endeavored, and he believes _successtully, to prove that this treaty was transient in its very nature; that it conferred upon Great Britain ng right but that of merely trading with the Indians whilst the country Undakt remata unsettled, and making the necessary establishments for this purpose ; and that it did not interfere with the ultimate sovereignty of Spain over the territory. The British plenipotentiary has not attempted to resist these conclusicns. If they be fair and legitimate, then it would not avail Great Britain, even if she should prove the Nootka con- vention to be still in force. On the contrary, this convention, if the construction placed upon it by the | undersigned be correct, contains a clear virtual ad- mission on the part of Great Britain that Spain held the eventual reat of aovesrianty over the whole dis- | puted territory; and consequently that it now belongs | tothe United States. = 3 {The value of this admission, made in 1790, is the | same whether or not the convention has continued | to exist until the present day. But he is willing to | leave this point on the uncontroverted argument contained in_ his former statement. ran But is the Nootka Sound convention still in force? The British plenipotentiary does not contest the | clear general principle of public law, ‘that war ter- | minates all subsisting treaties between the bellige- | rent powers.” He contends, however, in the first | place, that this convention is partly commercial; and | that, so far as it partakes of this character, it was re- vived by the treaty concluded at Madrid on the 28th August, 1814, which declares ‘‘that all the treaties of commerce which subsisted between the two par- ties (Great Britain and Spain) in 1796, were there- by ratified and confirmed ; and, second, ‘that in other respects it must be considered as an acknow- ledgment of subsisting rights—an admission of cer- tain principles of international law,” not to be revok- ed by war. 5: : | In is to the first proposition, the unde: ed is satisfied to leave the question to rest upon Hw for- | mer argument, as the British plenipotentiary has contented himself with merely asserting the fact, that the commercial portion of the Nootka Sound convention wes revived by the treaty of 1814, with. | out even specifying what he considers to be that portion of that convention. If the undersigned had | desired to strengthen his former ition, he mght | have repeated with at eflect the argument con- tained in the note of Lord Aberdeen to the Duke of Sotomayor, dated 30th of June, 1845, in which his lordship clearly established that all the treaties of commerce subsisting between (Great Britain and | Spain previous to 1796 were confined to the trade | with Spain alone, and did not embrace her colonies and remote possessions. . The second proposition of the British plenipoten- tiary deserves greater attention. Does the Nootka Sound convention belong to that class of treaties revious to the date of the Florida treaty ; and the Yatifications were not exchanged ary, 1819, i : _ Besides the negotiations which terminated in the Florida treaty had been commenced as early as December, 1815, and were in full progress on the 20th October, 1818, when the convention was signed between Great Britain and the United States.— Tt does not appear, therefore, that Spain had any knowledge of the existence of these negotiations ; and even if this were otherwise, she would have had no motive to complain, as she was in the very act of transferring all her rights to the United States. } But, says the British Plenipotentiary, Spain look- ed in silence on the continued occupation by the British of the settlements in the Columbia territory subsequently to the convention of 1814; and there- fore she considered the Nootka Sound convention to be still in force. The period of this silence, so far as it could affect Spain, commenced on the 28th day of August, 1514, the date of the additional ar- ticles to the treaty of Madrid, and terminated on the | 22d February, 1819, the date of the Florida treaty. — Is there the least reason from this silence to inler an admission by Spain of the continued existence of | the Nootka Sound convention ? _{n the first > this convention was entirely confined to ‘landing on the coasts of those seas, in'places not already occu- pied, for the purpose of carrying on their commerce with the natives of the country, or of making set- tlements there.’ It did not extend to the interior.— At the date of this convention, no person dreamed that British traders from Canada, or Hudson’s Bay, would cross the Rocky mountains and encroach on the rights of Spain from that quarter. Great Britain had never made any settlement on the northwestern coast of America, from the date of the Nootka | Sound Convention until the 22d February, 1819; nor so far as the undersigned is informed, has she done so down to the present moment. Spain could not, | therefore, have complained of any such settlement. | In regard to the encroachments which had been made from the interior by the Northwest company, neither Spain nor the rest of the world had any spe- cifie knowledge of their existence. But, even if the | British plenipotentiary had brought such knowledge | home to her—which he has not attempted—she had | been exhausted by one long and bir war, and was then engaged in another with her colonies ; and | was, besides, negotiating for a transfer of all her rights on the northwestern coast of America to the | nited States. Surely these were sufficient reasons for her silence, without inferring from it that she ac- quiesced in the continued existence of the Nootka convention. If Spain had entertained the least idea that the Nootka convention was still in force, her ood faith and her national honor would have caused fer to communicate this fact to the United States before she had ceded this territory to them for an ample consideration. Not the least intimation of | this kind was ever communicated. _ Like Great Britain in 1818, Spain in 1819 had no idea thgt the Nootka Sound convention was in force. Ithad then passed away, and was forgotten. The British plenipotentiary alleges, that the rea- son why Great Britain did not assert the existence of the Nootka convention during the negotiations between the two governments in 1818, was, that no occasion had arisen for its interposition, the Ameri- can government not having then acquired the title of Spain. It is very true that the United States had not then ore e Spanish title ; but is it possible to imagine, that romphout the whole negotiation, the British commissioners, had they supposed this convention to have been in existence, would have remained entirely silent in regard to a treaty which, as Great Britain now alleges, gave her equal and co- ordinate rights with Spain to the whole northwest coast of America? At thatéperiod, Great Britain confined her claims to those arising from discovery and purchase irom the Indians. could have strengthened these claims, had she then supposed the Nootka convention to be in force, with her present construction of its provisions! Even in 1824 it was firstintroduced into the negotiation, not by hef commissioners, but by Mr. Rush, the Ameri- can plenipotentiary. _ a But the British plenipotentiary argues, that “ the United States can found no claim on discovery, ex- ploration, and settlement effected previously to the Florida treaty, without admitting the principles of the Nootka convention ;” ‘‘nor can they appeal to any exclusive right as acquired by the Florida trea- ty, Without upsetting all claims adduced in their own proper right, by reason of discovery, explora- tion, and settlement antecedent w that orrange- ment. _This is a most ingenious method of making two distinct and independent titles held by the same na- tion worse than one—of arraying ther against each other, and thus destroying the validity of both.— Does he forget that the United States own both these titles, and can wield them either separately or Conjointly against the claim of Great Britain at their pleasure? From the course of his remarks, it might be supposed that Great Britain, and not the United States, had acquired the Spanish title under the Florida treaty. But Great Britain is a third party— an entire stranger to both these titles—and has no } containing “an acknowledgment of subsisting rights—an admission of certain principles of inter- | national Jaw” not to be abrogated by war. Had | Spain by this convention acknowledged the right of | all nations to make discoveries, plant settlements, | and establish colonies, on the northwest coast of | | America, bringing with them their sovereign juris- | diction, there would have been much force in the | argument. But such an admission never was | made, and never was intended to be made, by Spain. The Nootka convention is arbitrary and artificial in | the highest degree, and is anything rather than the mere acknowledgement of age and elementary principles consecrated by the law of nations. In all its provisions it is expressly confined to Great | Bnitain and Spain, and acknowledges no right what- ever in any third power to interfere with the north- | west coast of America. Neither in its terms, nor in its essence, does it contain any acknowledgment of previously subsisting territorial rights in Great Bri- tain, or any other nation. It is strictly confined to | | future engagements; and these are of a most peculiar character. Even under the construction of its pro- | visions maintained by Great Britain, her claim does | not extend to plant colonies; which she would have had a nght to do under the law of Nations, had the country been unappropriated ; but it is limited to a mere right of joint occupancy, not in respect to any part, but to the whole, the sovereignty remaining in abeyance. And to what kind of occupancy? Not separate and distinét colonies, but scattered settle- ments, intermingled with each other, over the whole surface of the territory, for the single purpose of tra- ee with the Indians, to all of which the subjects of eaeh power should have free access, the right of exclusive dominion remaining suspended. Surely, it cannot be successfully contended that such a trea- ty is ‘an admission (f certain principles of interna- uonal law,” so sacred and so perpetual in their na- ture as not to be annulled by war. On the contrary from the character of its pro ns, it cannot be supposed for a single moment that it was intended for any purpose but that of amere temporary arrange- ment between Great Britain and Spain. The law of nations recognises no such principles in regard to unappropriated territory as those embraced in this treaty; and the British plenipotentiary must fai the attempt to prove that it contains ‘an admission of certain principles of international law” which will survive the shock of war. But the British plenipotentiary contends that from | the silence of Spain during the negotiations of 1818 | between Great Britain and the United States re- | specting the Oregon territory, as well as “from her | silence with respect to the continued occupation by the British of their settlements in the Columbia ter- | ritory, subsequently tothe convention of 1814,” it | may fairly ‘be inferred that Spain considered the sti; ulations of the Nootka convention, and the prin- | ciples therein laid down, to be still in force.” | e undersigned cannot imagine a case where the obligations of a treaty, once extingnished by war, can be revived without a positive agreement to this effect between the parties. Even if both par- ties, after the conclusion of peace, should perform positive and unequivocal acts in accordance with its | provisions, these must be construed as merely vo- juntary, to be discontinued by either at pleasure.— But in the present case it is not even pretended that | Spain periormed any act in accordance with the | convention of Nootka Sound, after her treaty with | right whatever to marshal the one against the other. By what authority can Great Britain interpose in this manner? Was it ever imagined in any court of justice that the acquisition of a new title destroyed the old one ; and vice versa, that the purchase of the old title destroyed the new one? In a question of mere private right, it would be considered absurd, it a stranger to both titles should say to the party who had made a settlement, you shall not avail yourself of your possession, because this was taken in viola- tion of another outstanding title, and although I must admit that you have also acquired this outstand- ing title, yet even this shall avail you nothing, be- cause, having taken possession previously to your purchas-, you thereby evinced that you did not re- gard such title as valid. And yet such is the mode by which the British plenipotentiary has attempted to destroy both the American and Spanish titles. On the contrary, in the case mentioned, the posses- sion and the outstanding title being united in the same individual, these conjoined would be as per- feet as if both had been vested in him from the be- ginning. . The undersigned, whilst strongly asserting both these titles, and believing each of them separately to be good as against Great Britain, has studi- ously avoided instituting any comparison between them. But admitong, for the sake of the argument merely, that the discovery by Captain Gray of the mouth of the Columbia, its exploration by Lewis and Clarke, and the settlement upon its banks, at Astoria, were encroachments on Spain, she, and she alone, had a right tocomplain. Great Britain was a third party and, as such, had no right to in- terfere in the question between Spain and the United States. Bue Spain, instead ef complaining of these acts as encroachments, on the February, 1819, by the Florida treaty, transferred the whole title to the United States. From that moment all possible conflict between the two titles was ended, both being united in the same party. Two titles which might have conflicted, theretore, were thus blended together. The title now vested in the United States is just as strong as though every act of discovery, exploration, and settlement on the part of both powers, had been performed by Spain alone, before she had transferred all her rights to the Uni- | ted States. The two powers are one in this respect; the two titles are one; as the undersigne will | show hereafter, they serve to confirm and strengthen | each other. If’ Great Britain, instead of the United | States, had acquired the title of Spain, she might | have contended that those acts of the United States | were encroachments ; but, standing in the attitude | of a stranger to both titles, she has no right to inter- | fere in the matter. | ‘The undersigned deems it unnecessary to pursue this branch of the subject further than to state, that the United States, betore they had acquired the ttle of Spain, always treated that title with respect. In the negotiation of 1818, the American plenipoten- tiaries “did not assert that the United States had a perfect right to that country ; but insisted that their claim was at least good against Great Britain ;” and the convention of October 20, 1818, unlike that of Nootka Sound, reserved the claims of any other power or State to any part of the said country. This reservation could have been intended for Spain alone. But, ever since the United States acquired the Spanish title, they have always asserted and maintained their right in the strongest terms up to | Great Britain of 1814. Her mere silence is relied | Upon to revive that convention. » | The undersigned asserts confidently that, neither, by public nor private law will the mere silence of one party, whilst another is encroaching upon his | nights, even if he had knowledge ot this encroach- ment, deprive him of these rights. If this princi- | | ple be correct as applied to individuals, it holds | | with much greater force in regard to nations. The | feeble may not be in a condition to complain against the powerful, und thus the encroachment of the perfect title | | strong would convert itself into a | against the weak. | | In the present ease, it was scarcely possible for | Spain even to have learned the pendency of nego- tiations between the United States and Great | Britain, in relation to the north-west coast of Ameri- | | ca, betore she had ceded all her rights on that coast to the former by the Florida treaty of 22d February, 1819. The convention of joint occupation be- tween the United States and Great Britain was not | | signed at London until the 20th October, 1818—but | the Russian line, even whilst offering, for the sake ot harmony and peace, to divide the territory in dis- pute by the 49th parallel of latitude. The British plenipotentiary, then, has entirely | failed to sustain his position, that the United States | can found no claim on discovery, exploration, and settlement, without admitting the principles of th Nootka convention. That convention died on the commencement of the war between Spain and Eng- land, in 1796, and has never since been revived. The British penipomarary ext “endeavors to rove that even if the Nootka Sound convention ad never existed, the position of Great Britain in regard to her claim, whether to the whole or to any particular portion of the Jregon territory, 18 at least as good as that of the United States.” i | establish this position, he must show that the Bri- | tish claim is equal in validity to thextitles both of | Spain and the United States, These can never now | be separated. ‘They are one and the same. Differ- ent and divergi Florida treaty, y are now ble: prised to find claim of Great Britain and he had entirely omitted to refer to the discoveries, explorations, and settlements made by Spain. The How vastly she | Sound which render the fact incontestible, we have e | high authori distinguishes ve h e | seript documents in the city of Mexico, states that we Aa his pilot Estevan Martinez, left the port of in | 9th August they anchored (the first of all European { navigators) in Nootka road, which they called the again fitted out the ing as they may have been before the comman: the together and | Quadra The se identified. rate discoveries, explorations, and settlements of the two powers previous to that date must now be considered as if they all had been made by the United States alone. Under this palpa- ble view of the subject, the undersigned was sur- that in the comparison and contrast instituted by the British plenipotentiary between the at ot the United States, undersigned will endeavor to supply the omission. But, before he proceeds to the main argument on this point, he teels himself constrained to express his surpr’se that the British plenipotentiary should again have invoked ia support of the British tide the inconsistency between the Spanish and Ameri- can branches of the title of the United States. The undersigned cannot torbear to congratulate himaelf upon the fact, that a pentternas of Mr. Pakenham’s acknowledged ahs a8 been reduced to the neces- sity of relying chiefly upon such 2 support for sus- taining the British pretentions. Stated in brief, the argument is this: the American utle is not-good against Great Britain, because mconsistent with that of Spain; and the Spanish title is not good against Great Britain, because inconsistent with that of the United States. The undersigned nad expected some- thing far different from such an argument ina circle. He had anticipated that the British plenipotentiary would have attempted to prove that Spain had no right to the northwestern coast of America; that it was vacant and unappropriated ; and hence, under the law of nations, was open to discovery, explora- tion, and settlement by all nations. But no such thing. On this vital point of his case, he rests his argument solely on the declaration imade by the un- dersigned, that the title of the United States to the vailey of the Columbia was perfect and complete be- fore the treaties of joint occupation of October, 1818, and August, 1827, and before the date of the Flori- da treaty, in 1819. But the British plenipotentiary ought to recollect that this title was asserted to be complete not against Spain, but against Great Bri- tain; that the argument was conducted not inst a Spanish, but a British plenipotentiary ; and that the United States, and not Great Britain, represent the Spanish title. And, further, that the statement from which he extracts these decldtatians was almost ex- clusively devoted to preve, in the language quoted by the British plenipotentiary himeelf, that ‘‘ Spain had a good title, as against Great Britain, to the whole of the Oregon territory.” The undersigned has never, as he before observed, instituted any com- parison between the American and the Spanish ti- tles. Holding both—having a perfect right to rely upon both, whether jointly or separately—he has: strongly asserted each of them in their turn, fully persuaded that either the one or the other is good against Great Britain ; and that no human ingenuity can make the Spanish title, now vested in the Uni- ted States, worse than it would have been had it re- mained in the hands of Spain. wie Briefly to illustrate and entorce this title, shall be the remaining task of the undersigned. | And, in the first place, he cannot but ‘commend the frankness and candor of the British pleniyoeer: tiary in departing from. the course of his predeces- sors, and rejecting all discoveries previous to those of Captain Cook, in the year 1778, as foundations of British title. Commencing with discovery at a period so late, the Spanish title, on the score of an- tiquity, presents a strong contrast to that of Great Britain. The undersigned had stated asa historical and “striking fact, which must have an important bearing against the claim of Great Britain, that this convention, (the Nootka,) which was dictated by her to Spain, contains no provision impairing the ultimate sovereignty which that power had asserted for nearly three centuries over the whole western side of North America as far north as the 61st de- gree of latitude, and which had never been serious- ly questioned by any European nation. This had been maintained by Spain with the most vigilant jealousy ever since the discovery of the American continent, and had been acquiesced in by all Euro- pean governments. It had been admitted even be- yond the latitude of 54 deg. 40 min. north, by Rus- sia, then the only power haying claims which could come in collision with Spain; and that, too, under a soversigy peculiarly tenacious of the territorial rights of her empire.” These historical facts had not been, as they could not be, controverted by the British plenipotentiary, although they weréSrought under his particular observation, and were even quoted by him with approbation, for the purpose of showing the inconsistency of the several titles held by the United States. In the language of Count Fernan de Nunez, the Spanish am! lor at Paris, to M. de Montmorin, the Secretary of the Foren Hepartment of France, under dete of June 16th, 1790: “ By the treaties, demarkations, takings of possession, and the most decided acts of sovereign- ty exercised by the Spaniards in those stations from the reign of Charles ll, and authorized by that mo- narch in 1692, the original vouchers for which shall be brought torward in the course of the negotiation, vil the coast to the north of the western America, on the side of the South sea, as far as beyond what is called Prince William’s Sound, which’ is in the Glst degree, is acknowledged to belong exclusively to Spain.” { ., ; Compared with the ancient claim of Spain, ac- quiesced in by ali European nations for centuries, the claim of Great Britain, founded on discoveries commenced at so late a period as the year 1778, must make an unfavorable first impression. “ Spain considered the northwest coast of America us exclusively her own. She did net gend out ex- peditions to explore that coast, for the purpose of rendering her title more valid. When it suited her own convenience, or promoted her own interest, she fitted out such expeditions of discovery, to ascertain the character and extent of her own territory; and yet her discoveries along that coast are far earlier than those of the British. That Juan de Fuea,a Greek in the sexvice of Spain, in 1592, discovered and sailed through the strait now bearing his name, from its southern to its northern extremity, and thence returned by the same passage, no longer admits of reasonable doubt. An account of this voyage was published in Londot, in 1625, in a work called the Pilgrims, by Samuel Purchas. This account was received from the lips of Fuca himself at Venice, in April,1596, by Michael Lock, a highly respectable English merchant, During a long period, this voyage was deem fa bulous, because subsequent navigators had in vain attempted to find these straits. Finally, after they had been found, it was discovered that the descrip- tions of de Fuca corresponded so accurately with their geography, and the facts presented by nature upon the ground, that it was no longer possible to consider, his narration as fabulous. It is true that the opening of the straits from the south lies between the and 49th parallels of latitude, and not be- tween the 47th and 48th parallels, as he had suppos- ed; but this mistake may be easily explained by the inaccuracy so common throughout the sixteenth cen- tury in ascertaining the latitude of places in newly after passing through discovered countries. It is also true that de F these straits, supposed he tad reached the Atlantic, and had discovered the passage so long and so anxi- ously sought after between the two oceans; but from the total ignorance and misapprehension which prevailed at that early day of the geography of this portion of North America, it was natural for him to believe that he had made this important disco- very. Tbe has at length been done to his memory, and these straits which he discovered will, in all future time, bear his name. Thus, the merit of the discovery of the straits of Fuca, bel to 3 been jan and this nearly two centuries before they entered by Captain Berkeley, under the Austri: flag. 53 is unnecessary to detail the discoveries of the Spaniarde, as they re; ‘ly advanced to the north trom their gettlements on the western coasts of North Amafica, until we reach the voyage of Juan Perez, in 1774. That navigator was commis- sioned by the viceroy of Mexico to proceed, in the corvette Santiago, to the 60th degree of north latitude; and from that point to examine the coast down to Mexico. He sailed from San Blas on the 25th Jam , 1774. In the pertormance of this commission he landed first on the northwest coast of Queen Charlotte’s island, near the 54th degree of north latitude; and theaee proceeded south along the shore of that island and of the great islands of Qua- dra and Vancouver, and then along the coast of the continent, until he reached Monterey. He went on shore and held intercourse with the natives at seve- | places; and especially at the entrance of a bay in Tatitude ‘ S degrees, which he called Port San 23 renzo—the same now known by the name ot Nootka In addition to the journals of this voyage, ty ot Baron Humboldt in its favor. That traveller, who had access to the manu- on the 24th January, 1774. On the t of San Lorenzo, and which the illustrious rr Gook, four years afterwards, called King George’s in order to, Sound.” 1, (1775,) the viceroy of Mexico, Santiago, under the command of runo Heceta, with Perez, her former commander, 8 en gn, and algo a schooner, called the Sonor», ded by Juan Francisco de la Bodegad » These vessels were commissioned to €a- In the next yeni