Our next inquiry relates to the nature and extent of the rights at Nootka, and northward, which England acquired by this treaty. They are defined in the concluding phrase of the article before cited. The subjects {xv} of both the contracting Powers "shall have free access, and shall carry on their trade without disturbance or molestation." In other words the subjects of England shall have the same right to establish trading posts and carry on a trade with the Indians, as were, or should be enjoyed by Spanish subjects in those regions. Does this stipulation abrogate the sovereignty of Spain over those territories? England herself can scarcely urge with seriousness a proposition so ridiculously absurd. A grant of an equal right to settle in a country for purposes of trade, and a guarantee against "disturbance" and "molestation," does not, in any vocabulary, imply a cession of the sovereignty of the territory in which these acts are to be done.
The number and nature of the rights granted to England by this treaty, are simply a right to the joint occupancy of Nootka and the Spanish territories to the northward, for purposes of trade with the Indians; a joint tenancy, subject to be terminated at the will of the owner of the title to the fee and the sovereignty; and, if not thus terminated, to be terminated by the operations of the necessity of things—the annihilation of the trade {xvi}—the destruction of the Indians themselves as they should fall before the march of civilisation. It could not have been a perpetual right, in the contemplation of either of the contracting parties.
But there are reasons why the provisions of the treaty of 1763 never had been, and never can be binding on the United States as the successors of Spain in the Oregon territory.
There is the evidence of private gentlemen of the most undoubted character to show, that Spain neither surrendered to England any portion of Nootka, or other parts of the north-west coast; for that if she offered to do so, the offer was not acted upon by England; and testimony to the same effect in the debates of the times in the Parliament of Britain, in which this important fact is distinctly asserted, authorise us to declare that the treaty of 1763 was annulled by Spain, and so considered by England herself. And if England did not mean to show the world that she acquiesced in the non-fulfilment of Spain, she should have re-asserted her rights, if she thought she had any, and not left third parties to infer that she had quietly abandoned them. The United States had every reason to infer {xvii} such abandonment; and in view of it, thus manifested, purchased Oregon of Spain. Under these circumstances, with what justice can England, after the lapse of nearly half a century, come forward and demand of the successor of Spain rights in Oregon which she thus virtually abandoned—which were refused by Spain, and to which she never had the shadow of a right on the score of prior discovery, occupancy or purchase? The perpetually controlling and selfishness of her policy is the only plea that history will assign to her in accounting for her pretensions in this matter.
England also places her claim to Oregon upon the right of discovery. Let us examine this:—
The first English vessel which visited that coast was commanded by Francis Drake. He entered the Pacific in 1770[15] and sailed up the coast to the 45th parallel of north latitude, and then returned to the 38th degree; accepted the crown of the native Prince in the name of his Queen—called the country New Albion, returned to England and was knighted.
{xviii} The portions of Oregon seen by Drake had been seen and explored by the Spaniards several times within the previous thirty years.[16]
Sir Thomas Cavendish next came upon the coast; but did not see so much of it as Drake had seen.[17]
The celebrated Captain Cook followed Cavendish. He saw the coast in latitude 43 and 48 degrees. He passed the Straits de Fuca without seeing them, and anchored in Nootka Sound on the 16th February, 1779.[18] In trading with the Indians there, he found that they had weapons of iron, ornaments of brass, and spoons of Spanish manufacture. Nootka had been discovered and occupied by the Spaniards four years before Cook arrived.
The subsequent English navigators—Messrs. Vancouver,[19] and others, so far as the Oregon coast was the field of their labours, were followers in the tracks pointed out by the previous discoveries of the Spaniards.