“In planning a factory on the coast of America, we look to a solid establishment, and not to one that is to be abandoned at pleasure. We authorise you to fix it at the most convenient station, only to place your colony in peace and security, and fully protected from the fear of the smallest sinister accident. The object of a port of this kind is to draw the Indians to it, to lay up the small vessels in the winter season, to build, and for other commercial purposes. When this point is effected, different trading houses will be established at stations, that your knowledge of the coast and its commerce point out to be most advantageous.”
That the avowed object of Capt. Colnett’s expedition was in conformity with these instructions, is confirmed by the letter which Gray, the captain of the Washington, and Ingraham, the mate of the Columbia, both of them citizens of the United States, addressed to the Spanish commandant from Nootka Sound in August 3, 1792, and which Mr. Greenhow has published in his Appendix [p. 416]—“It seems Captain Meares, with some other Englishmen at Macao, had concluded to erect a fort and settle a colony in Nootka Sound; from what authority we cannot say. However, on the arrival of the Argonaut, we heard Captain Colnett inform the Spanish commodore he had come for that purpose, and to hoist the British flag, take formal possession, &c.; to which the commodore answered, he had taken possession already in the name of his Catholic Majesty; on which Capt. Colnett asked, if he would be prevented from building a house in the port. The commodore, mistaking his meaning, answered him he was at liberty to erect a tent, get wood and water, &c., after which, he was at liberty to depart when he pleased; but Capt. Colnett said, that was not what he wanted, but to build a block-house, erect a fort, and settle a colony for the Crown of Great Britain. Don Estevan Jose Martinez answered, No; that in doing that, he should violate the orders of his king, run a risk of losing his commission, and not only that, but it would be relinquishing the Spaniards’ claim to the coast; besides, Don Martinez observed, the vessels did not belong to the King, nor was he intrusted with powers to transact such public business. On which Capt. Colnett answered, he was a king’s officer: but Don Estevan replied, his being in the navy was of no consequence in the business.”
The authorised Spanish account in the Introduction of the Voyage of Galiano and Valdes [p. cvii.] is in perfect harmony with the contemporaneous American statement. Mr. Greenhow has quoted a portion of it in a note to his work, [p. 197,] which may be referred to more conveniently than the Spanish original, of which the following is a translation:—“There entered the same port, on the 2d of July, the English packet-boat Argonaut, despatched from Macao by the English Company. Her captain, James Colnett, was furnished with a license from the King of England, authorising him [iba autorizado con ordenes del Rey] to take possession of the Port of Nootka, to fortify himself in it, and to establish a factory for storing the skins of the sea-otter, and to preclude other nations from engaging in that trade, with which object he was to build a large ship and a schooner. So manifest an infringement of territorial rights led to an obstinate contest between the Spanish commandant and the English captain, which extended to Europe, and alarmed the two Powers, threatening them for some time with war and devastation, the fatal results of discord. Thus a dispute about the possession of a narrow territory, inhabited only by wretched Indians, and distant six thousand navigable leagues from Europe, threatened to produce the most disastrous consequences to the whole world, the invariable result, when the ambition or vanity of nations intervenes, and prudence and moderation are wanting in contesting rights of property.”
Spain, at the commencement of the negotiations, expressly required through her ambassador at the Court of London, on February 10, 1790, “that the parties who had planned these expeditions should be punished, in order to deter others from making settlements on territories occupied and frequented by the Spaniards for a number of years.” Great Britain, in undertaking that her subjects should not act against the just and acknowledged rights of Spain, maintained for them an 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. The word “establishment” here made use of is synonymous with “settlement,” établissement being the expression in the French version of the treaty wherever settlement occurs in the English version. Both these terms have a recognised meaning in the language of treaties, of a far wider extent than that to which Mr. Rush sought to limit the language of the Convention of the Escurial. In the convention itself the word “settlement” is applied, in the 4th article, to the Spanish colonies; in the 5th, it is applied to the parts of the coast occupied by the subjects of either Power since 1789, or hereafter to be occupied; in the 6th, to the parts of the coast which the subjects of both Powers were forbidden to occupy. There is nothing in the context to warrant the supposition that the usual meaning was not to be attached to the word “settlement” on this occasion, namely, a territorial settlement, such as is contemplated in the 3rd article of the Treaty of 1783: “and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, so long as the same shall remain unsettled: but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement without a previous agreement with the inhabitants, proprietors, or possessors of the ground.”
In the same manner, during the negotiations of 1818, the settlement at the mouth of the Columbia River was the term applied by Mr. Rush to Astoria. During the discussions between Spain and the United States prior to the Florida Treaty, the settlement in the Bay of St. Bernard, is the appellation given to the French colony of La Salle; and in Crozat’s grant the word établissemens is similarly employed. That “settlement” is not the received expression in the language of diplomatists for temporary trading stations, may be inferred from a single instance in the Treaty of 1794, by the second article of which it was provided,—“the United States, in the mean time, at their discretion extending their settlements [leurs établissemens] to any post within the said boundary line, except within the precincts or jurisdiction of any of the said posts. All settlers and traders within the said posts [tous les colons et commerçans établis dans l’enceinte et la jurisdiction des dites postes] shall continue to enjoy unmolested all their property of every kind, and shall be protected therein.”
One instance more will suffice. Treaties must be construed in accordance with the received and ordinary meaning of the language, unless otherwise specified, especially when it is sought to attach an unusual sense to any particular term, which sense is ordinarily expressed by some other well-known term. Thus, the 11th article of the Treaty of Paris serves to show, that a station exclusively for the purposes of trade with the natives is not termed a settlement, or établissement, but a factory, or comptoir. “In the East Indies Great Britain shall restore to France, in the conditions they are now in, the different factories [les différens comptoirs] which that crown possessed, as well on the coast of Coromandel and Orissa as on that of Malabar, as also Bengal, at the beginning of the year 1740.” [Jenkinson’s Collection of Treaties, vol. ii., p. 185; Martens’ Traités, i., p. 112.]
In remarkable contrast to this we find in the convention of commerce between Great Britain and the United States, signed at London, July 3, 1815, the following words in the third article:—“His Britannic Majesty agrees that the vessels of the United States of America shall be admitted and hospitably received at the principal settlements of the British dominions in the East Indies, viz., Calcutta, Madras, Bombay, and Prince of Wales’ Island, and that the citizens of the said United States may freely carry on trade between the said principal settlements and the said United States.” In this latter case it is no longer trading posts, but territorial establishments which are spoken of, and the word settlements is distinctively applied to them.