On examining this convention, it will be seen that the first article confirmed the positive engagement which his Catholic Majesty had contracted by his declaration of the 24th July: that the second contained an engagement for both parties to make reparation mutually for any contingent acts of violence or hostility: that the third defined for the future the mutual rights of the two contracting parties, in respect to the questions which remained in dispute after the exchange of the declaration and counter-declaration. By this article the navigation and fisheries of the Pacific Ocean and the South Seas were declared to be free to the subjects of the two crowns, and their mutual right of trading with the natives on the coast, and of making settlements in places not already occupied, was fully recognised, subject to certain restrictions in the following articles.
By the fourth of these, his Britannic Majesty bound himself to prevent his subjects carrying on an illicit trade with the Spanish settlements, and engaged that they should not approach within ten miles of the coasts already occupied by Spain.
By the fifth it was agreed that, in the places to be restored to the British, and in whatever parts of the north-western coasts of America, or the adjacent islands, situate to the north of the parts already occupied by Spain, the subjects of either power should make settlements, the subjects of the other should have free commercial access.
By the sixth it was agreed, that no settlements should be made by either power on the eastern and western coasts of South America, or the adjacent islands, south of the parts already occupied by Spain; but that they should be open to the temporary occupation of the subjects of either power, for the purposes of their fishery.
By the seventh, provisions were made for the amicable arrangement of any differences which might arise from infringements of the convention; and, by the eighth, the time of ratification was settled.
It thus appears that, by the third article, the right insisted upon by the British chargé-d’affaires at Madrid, in the Memorial of the 16th of May, was fully acknowledged; namely, “the indisputable right to the enjoyment of a free and uninterrupted navigation, commerce, and fishery, and to the possession of such establishments as they should form, with the consent of the natives of the country, not previously occupied by any of the European nations.” In accordance with this view, it is observed in Schoell’s Histoire Abrégée des Traités de Paix: “En conséquence il fut signé le 28 Octobre, au palais de l’Escurial, une convention par laquelle la question litigieuse fut entièrement décidée en faveur de la Grande Bretagne.”
Thus, indeed, after a struggle of more than two hundred years, the principles which Great Britain had asserted in the reign of Elizabeth, were at last recognised by Spain: the unlimited pretensions of the Spanish crown to exclusive dominion in the Western Indies, founded upon the bull of Alexander VI., were restrained within definite limits; and occupation, or actual possession, was acknowledged to be henceforward the only test between the two crowns, in respect to each other, of territorial title on the west coast of North America.
Mr. Greenhow states, (p. 215,) that both parties were, by the convention, equally excluded from settling in the vacant coasts of South America; and from exercising that jurisdiction which is essential to political sovereignty, over any spot north of the most northern Spanish settlement in the Pacific. The former part of this statement is perfectly correct, but the latter is questionable, in the form in which it is set forth. The right of trading with the natives, or of making settlements in places not already occupied, was secured to both parties by the third article: whereas, in places where the subjects of either power should have made settlements, free access for carrying on their trade was all that was guaranteed to the subjects of the other party. This then was merely a commercial privilege, not inconsistent with that territorial sovereignty, which, by the practice of nations, would attend upon the occupation or actual possession of lands hitherto vacant. In fact, when Mr. Greenhow observes, in continuation, that “the convention determined nothing regarding the rights of either to the sovereignty of any portion of America, except so far as it may imply an abrogation, or rather suspension of all such claims on both sides, to any of those coasts;” he negatives his previous supposition that the convention precluded the acquisition of territorial sovereignty by either party. The general law of nations would regulate this question, if the convention determined nothing: and, by that general law, “when a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty of it at the same time with the domain.” The discussion of this question, however, as being one of law, not of fact, will be more properly deferred.
One object of Vancouver’s mission, as already observed, was to receive from the Spanish officers such lands or buildings as were to be restored to the subjects of his Britannic Majesty, in conformity to the first article of the convention, and instructions were forwarded to him, after his departure, through Lieutenant Hergest, in the Dædalus, to that effect. The letter of Count Florida Blanca to the commandant at Nootka, which Lieutenant Hergest carried out with him, is to be found in the Introduction to Vancouver’s Voyage, p. xxvii. “In conformity to the first article of the convention of 28th October, 1790, between our Court and that of London, ( . . . . . ) you will give directions that his Britannic Majesty’s officer, who shall deliver this letter, shall immediately be put into possession of the buildings, and districts or parcels of land, which were occupied by the subjects of that sovereign in April 1789, as well in the port of Nootka or of St. Lawrence, as in the other, said to be called Port Cox, and to be situated about sixteen leagues distant from the former, to the southward; and that such parcels or districts of land of which the English subjects were dispossessed, be restored to the said officer, in case the Spaniards should not have given them up.”
Vancouver, however, on his arrival, found himself unable to acquiesce in the terms proposed by Señor Quadra, the Spanish commandant, and despatched Lieutenant Mudge, by way of China, to England, for more explicit instructions. Lieutenant Broughton was subsequently directed to proceed home in 1793, with a similar object. On his arrival he was sent by the British Government to Madrid; and on his return to London, was ordered to proceed to Nootka, as captain of his Majesty’s sloop Providence, with Mr. Mudge as his first lieutenant, to receive possession of the territories to be restored to the British, in case they should not have been previously given up. His own account, published in his Voyage, p. 50, is unfortunately meagre in the extreme. On 17th March, 1796, he anchored in the Sound, where Maquinna and another chief brought him several letters, dated March, 1795, which informed him “that Captain Vancouver sailed from Monterey the 1st December, 1794, for England, and that the Spaniards had delivered up the port of Nootka, &c., to Lieutenant Pierce of the marines, agreeably to the mode of restitution settled between the two Courts. A letter from the Spanish officer, Brigadier Alava, informed him of their sailing, in March, 1795, from thence.”