In respect to the title derived by the United States from Spain, Mr. Rush contended that, “if Great Britain had put forth no claims on the north-west coast, founded on prior occupation, still less could she ever have established any, at any period, founded on prior discovery. The superior title of Spain on this ground, as well as others, was indeed capable of demonstration.” Russia had acknowledged it in 1790, as the State Papers of the Nootka Sound controversy would show. The memorial of the Spanish Court to the British minister on that occasion expressly asserted, that notwithstanding all the attempted encroachments upon the Spanish coasts of the Pacific Ocean, Spain had preserved her possessions there entire,—possessions which she had constantly, and before all Europe, on that and other occasions, declared to extend to as high at least as the 60th degree of north latitude. The very first article of the Nootka Sound Convention attested, I said, the superiority of her title; for whilst by it the nations of Europe generally were allowed to make settlements on that coast, it was only for the purposes of trade with the natives, thereby excluding the right of any exclusive or colonial establishments for other purposes. As to any claim on the part of Britain under the voyage of Captain Cook, I remarked that this was sufficiently superseded (passing by every thing else) by the Journal of the Spanish expedition from San Blas in 1775, kept by Don Antonio Maurelle, for an account of which I referred the British plenipotentiaries to the work of Daines Barrington, a British author. In that expedition, consisting of a frigate and a schooner, fitted out by the Viceroy of Mexico, the north-west coast was visited in latitude 45, 47, 49, 53, 55, 56, 57, and 58 degrees, not one of which points there was good reason for believing had ever been explored, or as much as seen, up to that day, by any navigator of Great Britain. There was, too, I said, the voyage of Juan Perez, prior to 1775; that of Aguilar, in 1601, who explored that coast in latitude 45°; that of De Fuca in 1592, who explored it in latitude 48°, giving the name, which they still bore, to the straits in that latitude, without going through a much longer list of other early Spanish navigators in that sea, whose discoveries were confessedly of a nature to put out of view those of all other nations. I finished by saying, that in the opinion of my government, the title to the United States to the whole of that coast, from latitude 42° to as far north as latitude 60°, was therefore superior to that of Great Britain or any other Power; first, through the proper claim of the United States by discovery and settlement, and secondly, as now standing in the place of Spain, and holding in their hands all her title.”
The British plenipotentiaries, in their reply, repeated their animated denials of the title of the United States, as alleged to have been acquired by themselves, enlarging and insisting upon their objections to it, as already stated. Nor were they less decided in their renewed impeachments of the title of Spain. They said that it was well known to them what had formerly been the pretensions of Spain to absolute sovereignty and dominion in the South Seas, and over all the shores of America which they washed: but that these were pretensions which Britain had never admitted: on the contrary, had strenuously resisted them. They referred to the note of the British minister to the Court of Spain, of May 16, 1790, in which Britain had not only asserted a full right to an uninterrupted commerce and navigation in the Pacific, but also that of forming, with the consent of the natives, whatever establishments she thought proper on the north-west coast, in parts not already occupied by other nations. This had been the doctrine of Great Britain, and from it, nothing that was due in her estimation to other Powers, now called upon her in any degree to depart.
As to the alleged prior discoveries of Spain all along that coast, Britain did not admit them but with great qualification. She could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even where this was capable of being substantiated as the fact, without any subsequent or efficient acts of sovereignty or settlement on the part of Spain, was sufficient to exclude all other nations from that portion of the globe. Besides, they said, even on the score of prior discovery on that coast, at least as far up as 48° north latitude, Britain herself had a claim over all other nations. “Here they referred to Drake’s expedition in 1578, who, as they said, explored that coast on the part of England, from 37° to 48° N., making formal claim to these limits in the name of Elizabeth, and giving the name of New Albion to all the country which they comprehended. Was this, they asked, to be reputed nothing in the comparison of prior discoveries, and did it not even take in a large part of the very coast now claimed by the United States, as of prior discovery on their side?”
Mr. Rush in reply contended, “as to Drake, although Fleurieu, in his introduction to Marchand, did assert that he got as far north as 48°, yet Hakluyt, who wrote about the time that Drake flourished, informs us that he got no higher than 43°, having put back at that point from extremity of cold. All the later authors or compilers, also, who spoke of his voyage, however they might differ as to the degree of latitude to which he went, adopted from Hakluyt this fact, of his having turned back from intensity of weather. The preponderance of probability, therefore, I alleged, as well as of authority was, that Drake did not get beyond 43° along that coast. At all events, it was certain that he had made no settlements there, and the absence of these would, under the doctrine of great Britain, as applied by her to Spain, prevent any title whatever attaching to his supposed discoveries. They were moreover put out of view by the treaty of 1763, by which Great Britain agreed to consider the Mississippi as the western boundary upon that continent.”
He concluded with re-asserting formally, “the full and exclusive sovereignty of the United States over the whole of the territory beyond the Rocky Mountains washed by the Columbia River, in manner and extent as stated, subject, of course, to whatever existing conventional arrangements they may have formed in regard to it with other Powers. Their title to this whole country they considered as not to be shaken. It had often been proclaimed in the legislative discussions of the nation, and was afterwards public before the world. Its broad and stable foundations were laid in the first uncontradicted discovery of that river, both at its mouth and its source, followed up by an effective settlement, and that settlement the earliest ever made upon its banks. If a title in the United States, thus transcendant, needed confirmation, it might be sought in their now uniting to it the title of Spain. It was not the intention of the United States, I remarked, to repose upon any of the extreme pretensions of that Power to speculative dominion in those seas, which grew up in less enlightened ages, however countenanced in those ages; nor had I, as their plenipotentiary, sought any aid from such pretensions; but to the extent of the just claims of Spain, grounded upon her fair enterprise and resources, at periods when her renown for both filled all Europe, the United States had succeeded, and upon claims of this character it had, therefore, become as well their right as their duty to insist.”
The British plenipotentiaries, in conclusion, with a view as they said of laying a foundation of harmony between the two governments, proposed that the third article of the Convention of 1818 should now terminate. That “the boundary line between the territories respectively claimed by the two Powers, westward of the Rocky Mountains, should be drawn due west, along the 49th parallel of latitude, to the point where it strikes the north-easternmost branch of the Columbia, and thence down along the middle of the Columbia to the Pacific Ocean: the navigation of this river to be for ever free to the subjects or citizens of both nations.” They remarked, “that in submitting it, they considered Great Britain as departing largely from the full extent of her right, and that, if accepted by the United States, it would impose upon her the necessity of breaking up four or five settlements, formed by her subjects within the limits that would become prohibited, and that they had formed, under the belief of their full rights as British subjects to settle there. But their government was willing, they said, to make these surrenders, for so they considered them, in a spirit of compromise, on points where the two nations stood so divided.”
Mr. Rush, in reply, declared his utter inability to accept such a proposal, and in return consented, “in compliance with this spirit, and in order to meet Great Britain on ground that might be deemed middle, to vary so far the terms of his own proposal, as to shift the southern line as low as 49° in place of 51°.” “I desired it,” he writes, “to be understood, that this was the extreme limit to which I was authorised to go; and that, in being willing to make this change, I, too, considered the United States as abating their rights, in the hope of being able to put an end to all conflict of claims between the two nations to the coast and country in dispute.”
The British commissioners declined acceding to this proposal, and as neither party was disposed to make any modification in their ultimatum, the negotiation was brought to a close.