On the 6th day of May, 1789, the Spanish Captain Martinez, commanding two national armed vessels, took possession of Nootka Sound and the adjoining country. {xii} Previous to this event, say the authorities referred to, no jurisdiction had been exercised by the subjects of any civilized power on any part of the north-west coast of America between 37° and 60° of north latitude.
Thus is it shown on how firm and incontrovertible data the Spanish claims rest to the prior discovery and occupancy of the Oregon Territory.
But as against England this claim was rendered if possible more certain by the treaty of February 10th, 1763, between Spain, England and France—by which England was confirmed in her Canadian possessions, and Spain in her discoveries and purchased possessions west of the Mississippi. If, then, England has any claim to Oregon as derived from Spain, it must rest on treaty stipulations entered into subsequently to the 10th of February, 1763.
We accordingly find her to have formed a treaty with Spain in the year 1800, settling the difficulties between the two powers in relation to Nootka Sound. By the first article of the convention, Spain agreed to restore to England those portions of the country around Nootka Sound which England {xiii} has so occupied in regard to time and manner as to have acquired a right to them. The 5th article stipulates as follows:
"5th. As well in the places which are to be restored to the British subjects by virtue of the first article as in all other ports of the North-West Coast of North America, or of the Island, adjacent, situate to the north of the coast already occupied by Spain wherein the subjects of either of the two Powers shall have made settlements since the month of April 1789, or shall hereafter make any. The subjects of the other shall have free access and shall carry on their trade without any disturbance or molestation."[14]
The inquiries that naturally arise here are, on what places or parts of the North-West Coast did this article operate; what rights were granted by it, and to what extent the United States, as the successors of Spain, in the ownership of Oregon, are bound by this treaty?
These will be considered in their order.
Clearly the old Spanish settlements of the Californias were not included among the places or parts of the North-West Coast on which this article was intended to operate, for the reason that England, the party in {xiv} interest, has never claimed that they were. But on the contrary, in all her diplomatic and commercial intercourse with Spain since 1800, she has treated the soil of the Californias with the same consideration that she has any portion of the Spanish territories in Europe.—And since that country has formed a department of the Mexican Republic, England has set up no claims within its limits under this treaty.
Was Nootka Sound embraced among the places referred to in this article? That was the only settlement on the North-West Coast, of the subjects of Spain or England, made between the month of April, 1787, and the date of the treaty, and was undoubtedly embraced in the Fifth Article. And so was the remainder of the coast, lying northward of Nootka, on which Spain had claims. It did not extend south of Nootka Sound. Not an inch of soil in the valley of the Columbia and its tributaries was included in the provisions of the treaty of 1763.