The Oregon Territory, Its History and Discovery

by Travers Twiss

CHAPTER XV.

EXAMINATION OF THE CLAIMS OF THE UNITED STATES.

Exclusive Sovereignty for the first Time claimed by the United States over the Valley of the Columbia.—The Statements relied upon to support this, not correct.—The Multnomah River erroneously laid down in Maps.—Willamette Settlement—Source of the Multnomah, or Willamette, in about 43° 45′ N. L.—Clarke’s River.—Source in 46° 30′.—The Northernmost Branch of the Columbia discovered and explored by Mr. Thomson.—The Pacific Fur Company not authorised by the United States Government.—The American Fur Company, chartered by the State of New York in 1809, a different Company for a different Purpose.—The Association dissolved at Astoria before the Arrival of H. B. M.’s Sloop of War the Racoon.—Protection of the National Flag.—Vattel.—Kluber.—Letter from Mr. Gallatin to Mr. Astor.—A Commission from the State required in respect of acquiring Territory.—Title by Discovery of the Mouth of a River.—Rivers Appendages to a Territory.—Vattel.—Common Use of great Rivers.—Mr. Wheaton.—Effect of the Principle to make the Highlands, not the Water Courses, the Boundaries.—Different Principle advanced by Messrs. Pickney & Monroe, in 1805, founded on Extent of Sea Coast.—Vattel.—Charters of Georgia, Pennsylvania, and Carolina.—Crozat’s Grant opposed to the Spanish Discovery of the Mississippi.—Inconvenience in applying the Principle.—Conflict of Titles.—Course of the Columbia River.—Valley of the Columbia River does not extend across the Cascade Range, on the North Side of the River.—Derivative Title of the United States from Spain.—Spanish Version, in 1790, of Encroachments by Russia.—The Russian Statement.—The Russian American Company, in 1799—Lord Stowell.—Discoveries require Notification.—The Convention of the Escurial admitted to contain Recognitions of Rights.—Meaning of the Word “Settlements.”

It will have been seen in the previous chapter that Messrs. Rush and Gallatin, in the negotiations of 1823-24, no longer confined themselves to the assertion of an imperfect right on the part of the United States, good at least against Great Britain, as in the negotiations of 1818, but set up a claim on the part of the United States, in their own right, to absolute and exclusive sovereignty and dominion over the whole of the country westward of the Rocky Mountains, from 42° to at least as high up as 51°. This claim they rested upon their first discovery of the River Columbia, followed up by an effective settlement at its mouth.

In respect to the discovery of the river, they alleged the same facts as in 1818, namely, that Captain Gray, in the American ship Columbia, first discovered and entered its mouth, and that Captains Lewis and Clarke first explored it from its sources to the ocean. In respect to settlement, the establishment at Astoria was, as before, relied upon, having been formally surrendered up to the United States at the return of peace.

The American plenipotentiaries grounded the extent of the exclusive claim of the United States, in their own right, upon the fact that “it had been ascertained that the Columbia extended by the River Multnomah to as low as 42° north, and by Clarke’s River to a point as high up as 51°, if not beyond that point.” In the first place, then, neither of these statements is correct. The erroneous notions respecting the Multnomah River have been already alluded to in the chapter upon the Treaty of Washington. To a similar purport, in the map prefixed to Lewis and Clarke’s Travels, we find the source of the Multnomah laid down in 38° 45′ north latitude, 115° 45′ west longitude from Greenwich, the river being represented to run a due north-west course, and to empty itself into the Columbia within about 140 miles of the sea. In the narrative of the expedition, Chapter XX., it is expressly stated, that they passed the mouth of this river in their way down the Columbia to the Pacific, and afterwards found it to be the Multnomah; and in Chapter XXV. it is said that “the Indians call it Multnomah from a nation of the same name, residing near it, on Wappatoo Island.” This Island lies in the immediate mouth of the river, dividing the channel into two parts. Now this river is the modern Willamette, which enters the Columbia from the south, about five miles below Fort Vancouver, about eighty-five miles from the sea, according to Mr. Dunn, and in the valley of this river, in a very fertile district, about fifty miles from its entrance into the Columbia, is the Willamette Settlement, where the majority of the colonists from the United States are located, though according to Commander Wilkes’ account, (vol. iv., chap. x., p. 349, 8vo. ed.,) many of the farms belong to Canadians who have been in the service of the Hudson’s Bay Company. Actual survey, as may be seen from Commander Wilkes’ map, has determined that the southernmost source of the Multnomah, or Willamette, is in about 43° 45′ N. L.

In respect to Clarke’s River, the map of Lewis and Clarke places the highest source of it in about 45° 30′, whilst Commander Wilkes’ map determines it to be in about 46° 30′. It is the same as the Flathead River, and it joins the main stream of the Columbia a little below the 49th parallel. It thus appears that neither of the rivers upon which Mr. Rush relied, supports his claim to the extent which he maintained. Had he grounded the title of the United States towards the south upon the source of the Lewis or Snake River, which he may possibly have intended to do, this would have given him the 42d parallel to commence with, and Clarke’s River would have carried the claim of the United States up to very nearly 49° at its junction with the northern branch, but no higher. Lewis and Clarke saw nothing, and knew nothing, of the northernmost branch of the Columbia, which Mr. Thomson, the astronomer of the North-west Company, first explored to its junction with Clarke’s River, and thence to the sea, in 1811, as already (p. 21) detailed.

In reference to the settlement of Astoria, on the southern bank of the Columbia, at its mouth, the Pacific Fur Company does not appear to have been authorised by the United States Government to make any effective settlement there. On the contrary, it is asserted by writers in the United States, who, it may be presumed, are well informed on the subject, and the Charleston Mercury of October 11, 1845, expressly asserts the fact,—“that the United States Government, though earnestly solicited by Mr. Astor, refused to authorise or sanction his expedition.” Mr. Astor himself states, in his letter of January 4, 1823, to Mr. Adams, quoted by Mr. Greenhow in his Appendix, p. 441, that it was as late as February 1813, when he made an application to the Secretary of State at Washington, but no reply was given to it. In addition, although Mr. Astor, according to Mr. Washington Irving, obtained a charter from the State of New York in 1809, incorporating a company under the name of the American Fur Company, this was intended to carry on the fur trade in the Atlantic States, and was a totally distinct speculation from the Pacific Fur Company, which was not formed before July 1810, and was a purely voluntary association for commercial purposes, consisting of ten partners, of whom Mr. Astor was the chief. Of these, however, six were British subjects, who, according to Mr. Greenhow, p. 294, communicated the plan of the enterprise to the British minister at Washington, and were assured by him, “that in case of a war between the two nations they would be respected as British subjects and merchants.” Such a body of traders could hardly be considered to invest their settlement at Astoria with any distinct national character, much less to represent the sovereignty of the United States of America, so as, in taking possession of a portion of territory at the mouth of the Columbia, to acquire for the United States the empire or sovereignty of it, at the same time with the domain.

It must be kept in mind that the Pacific Fur Company was a purely voluntary association, a mercantile firm in fact, not incorporated, as the American Fur Company had been, by an Act of the Legislature of the State of New York, nor, though countenanced by the Government of the United States, as it well deserved to be, in any respect authorised by it. “The association,” according to Mr. Washington Irving, “if successful, was to continue for twenty years, but the parties had full power to abandon and dissolve it within the first five years, should it be found unprofitable.” And thus, we find, that the association was dissolved by the unanimous act of the partners present at Astoria on the 1st of July 1813, and the establishment itself, with the furs and stock in hand, transferred by sale on the 6th of October to the North-west Company, so that when the British sloop-of-war the Racoon arrived on the 1st of December, the settlement at Astoria was the property of the North-west Company. Captain Black, formally took possession of Astoria in the name of his Britannic Majesty, according to the narrative of Mr. John Ross Cox, and having hoisted the British ensign, named it Fort George. There is no mention however of the flag of the United States having been struck on this occasion. Thus, indeed, the territory was for the first time taken possession of by a person “furnished with a commission from his sovereign,” and from this time Astoria became a settlement of the British Crown, not by the rights of war, but by a national act of taking possession. At a subsequent period, however, upon the representation of the Government of the United States, the British Government, in conformity, as it was led to suppose, to the first article of the Treaty of Ghent, directed the settlement of Fort George to be restored to the United States. The British ensign was then formally struck, and the flag of the United States hoisted. By this act of cession on the part of the Crown of Great Britain, and the subsequent taking possession of the place by Mr. Prevost, as agent for the United States, Astoria for the first time acquired the national character of a settlement of the United States; and though the facts of the case, when better understood, might not have brought Astoria within the scope of the first article of the Treaty of Ghent, still the act of cession, having been a voluntary act on the part of the British Government, would carry with it analogous consequences to those which followed the restoration of the settlement at Nootka Sound, on the part of Spain, to Great Britain, by virtue of the first article of the Treaty of the Escurial. From this period, then, the first authoritative occupation of any portion of the Oregon territory by the United States is to be dated.

But it was alleged on the part of the United States, that the mouth of the Columbia river had been first discovered and entered by Captain Gray, a citizen of the United States, in a vessel sailing under the flag of the United States: and when it was urged by the British commissioners that the discovery was not made by a national ship, or under national authority, it was stated by Mr. Rush, that “the United States could admit no such distinction, could never surrender under it, or upon any ground, their claim to this discovery. The ship of Captain Gray, whether fitted out by the government of the United States or not, was a national ship. If she was not so in a technical sense of the word, she was in the full sense of it applicable to such an occasion. She bore at her stern the flag of the nation, sailed forth under the protection of the nation, and was to be identified with the rights of the nation.”