The result of this inquiry seems fully to warrant the position which the British commissioners insisted on in 1826-7, that the discovery of the Columbia river was a progressive discovery. Heceta made the first step in 1775, when he discovered the bay, and concluded that “the place was the mouth of some great river, or of some passage to another sea;” but Heceta’s report was not made public by the Spanish authorities. Meares, in 1788, confirmed Heceta’s discovery of the bay, but impugned the correctness of the Spanish charts, as to there being a river there with a good port; his Voyages were published in London in 1790. Vancouver, having seen Meares’ account before he left England, examined the bay in April 1792, and at that time came to the conclusion that, though there was river-coloured water in the bay, yet the opening was not worthy of attention, as being inaccessible to vessels of the same burden as the Discovery: his account was published in 1798. Gray, in the May following, after having on a former occasion beat about in the bay for nine days ineffectually, succeeded on his second visit in passing the bar, and explored the estuary for more than twenty miles: the extract of his log-book, which relates the particulars, was not made public before 1816. Lieutenant Broughton in the same year may be considered to have completed the discovery of the river, by ascending it for more than eighty miles above the limits of Gray’s researches, almost to the foot of the Cascades, where the tide ceases to be felt: the particulars of this expedition were published in the 2nd vol. of Vancouver’s Voyage, in 1798.
The plenipotentiary of the United States, Mr. Gallatin, on the other hand, repudiated the notion of Gray’s enterprise being considered as only a step in the progress of discovery, and maintained that the discovery of the river belonged exclusively to the United States; that Quadra (or he should have said, Heceta) had overlooked it; that Meares had likewise failed, and Vancouver had been not more fortunate; and that Broughton’s merit consisted merely in performing with fidelity the mechanical duty of taking the soundings 100 miles up its course. Upon the fact of this asserted first discovery in 1792, followed by the settlement of Astoria in 1812, Mr. Rush, announced, for the first time, in 1824, “that the United States claimed in their own right, and in their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains from the 42d to at least as far up as the 51st degree of north latitude.” “It had been ascertained that the Columbia extended by the River Multnomah to as low as 42 degrees north, and by Clarke’s river to a point as high up as 51 degrees, if not beyond that point; and to this entire range of country, contiguous to the original dominions, and made a part of it by the almost intermingling waters of each, the United States,” he said, “considered their title as established, by all the principles that had ever been applied on this subject by the powers of Europe to settlements in the American hemisphere. I asserted,” he continued, “that a nation discovering a country, by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of such principal river, and its tributary streams.”
Great Britain formally entered her dissent to such a claim, denying that such a principle or usage had been ever recognised amongst the nations of Europe, or that the expedition of Captain Gray, being one of a purely mercantile character, was entitled to carry with it such important national consequences, (British and Foreign State Papers, 1825-6.)
In the subsequent discussions of 1826-7, Great Britain considered it equally due to herself and to other powers to renew her protest against the doctrine of the United States, whilst on the other hand the United States continued to maintain, that Gray’s discovery of the Columbia river gave, by the acknowledged law and usage of nations, a right to the whole country drained by that river and its tributary streams.
Haying now passed in review the main facts connected with the discovery and occupation of the Oregon territory, we may proceed to consider the general principles of international law which regulate territorial title.
CHAPTER VII.
ON THE ACQUISITION OF TERRITORY BY OCCUPATION.
Connexion of the Sovereignty of a Nation with the Domain.—Vattel. The Sovereignty and Eminent Domain (Dominium eminens) attend on Settlement by a Nation.—Settlement by an Individual limited to the Acquisition of the Useful Domain (Dominium utile.) A Nation may occupy a Country by its Agents, as by settling a Colony. Kluber’s Droits des Gens.—The Occupation must be the Act of the State.—Occupation constitutes a perfect Title.—Bracton de Legibus.—Wolff’s Jus Gentium.—Acts accessorial to Occupation, such as Discovery, Settlement, &c., create only an imperfect Title.