The Oregon Territory, Its History and Discovery

by Travers Twiss

NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1826-27.

Revival of Negotiations.—Written Statements of respective Claims.—The United States.—Great Britain.—Rights supposed to be derived from the Acquisition of Louisiana.—Jefferys’ French America.—Cession of Canada.—The Illinois Country.—Treaty of Utrecht.—Treaty of Paris.—French Maps.—Charters.—Declaration of Court of France in 1761, as to respective Limits of Canada and Louisiana.—Contiguity of Territory.—Hudson’s Bay Territories.—Atlantic Colonies.—Cession by France of the left Bank of the Mississippi.—Mr. Gallatin’s Doctrine of Contiguity.—Assumptions not admissible.—Claim to an exclusive Title by Contiguity.—Argument from Numbers.—Derivative Title from Spain.—Meaning of the Word “Settlement” in the Treaty of the Escurial.—Mr. Gallatin’s Doctrine respecting “Factories.”—Intermixed Settlements not incompatible with distinct Jurisdiction.—The Convention contained a mutual Recognition of Rights.—General Law of Nations may be appealed to as supplementary to the Treaty.—Priority of Settlement.—Vattel.—Territory in use never granted for the purpose of making Settlements.—Treaty of Paris.—Usufructuary Right.—Settlements not to be disturbed.—Territory in chief not reserved.—Convention of 1827.

The subject of a definitive arrangement of the respective claims of the two nations to the country west of the Rocky Mountains, the sovereignty over which had been placed in abeyance for ten years by the Convention of 1818, was once more revived in 1826, on the arrival in London of Mr. Gallatin, with full powers from the United States to resume the discussion. The British commissioners renewed their former proposal of a boundary line drawn along the 49th parallel from the Rocky Mountains to M’Gillivray’s River, the north-eastern branch of the Columbia, and thence along that river to the Pacific Ocean, and subsequently “tendered in the spirit of accommodation” the addition of a detached territory on the north side of the river, extending from Bulfinch’s (Gray’s or Whidbey’s) Harbour on the Pacific, to Hood’s Canal on the Straits of Fuca. Mr. Gallatin, on his part, confined himself to the previous offer of the 49th parallel to the Pacific, with the free navigation to the sea of such branches of the Columbia as the line should cross at points from which they are navigable by boats. The claims of the two nations were on this occasion formally set forth in written statements, and annexed to the protocol of the sixth and seventh conferences respectively. They were published with President Adams’s Message to Congress of December 12, 1827, and are both inserted in full in the second edition of Mr. Greenhow’s History, lately published. The British statement alone was published in his first edition, but the United States’ counter-statement, a very able paper, which was a great desideratum, has been annexed to the second edition.

It is much to be regretted that so interesting a collection of state papers as the documents of Congress contain, are almost inaccessible to the European reader, since a complete collection is not to be met with in any of our great public libraries in England or France—those of the British Museum, for example, and of the Chamber of Deputies, having been in vain consulted for this purpose. It was intended to annex both the written statements on this occasion in an Appendix to the present work, but the recent publication of the negotiations of 1844-5, has rendered this step unnecessary.

On this occasion Mr. Gallatin grounded the claims of the United States—first of all upon their acquisition of Louisiana, as constituting as strong a claim to the westwardly extension of that province over the contiguous vacant territory, and to the occupation and sovereignty of the country as far as the Pacific Ocean; and, secondly, on the several discoveries of the Spanish and American navigators. These distinct titles, it was maintained, “Though in different hands, they would conflict with each other, being now united in the same Power, supported each other. The possessors of Louisiana might have contended, on the ground of contiguity, for the adjacent territory on the Pacific Ocean, with the discoveries of the coast and of its main rivers. The several discoveries of the Spanish and American navigators might separately have been considered as so many steps in the progress of discovery, and giving only imperfect claims to each party. All these various claims, from whatever consideration derived, are now brought united against the pretensions of any other nation.”

“These united claims,” it was urged, “established a stronger title to the country above described, and along the coast as far north, at least, as the 49th parallel of latitude, than has ever, at any former time, been asserted by any nation to vacant territory.”

The British commissioners, Messrs. Huskisson and Addington, on their part, maintained that the titles of the United States, if attempted to be combined, destroyed each other—if urged singly, were imperfect titles. Great Britain claimed no exclusive sovereignty over any portion of the territory. As for any exclusive Spanish title, that was definitively set at rest by the Convention of Nootka, and the United States necessarily succeeded to the limitations by which Spain herself was bound. In respect to the French title, Louisiana never extended across the Rocky Mountains westward, unless some tributary of the Mississippi crossed them from east to west; but assuming that it did even extend to the Pacific, it belonged to Spain equally with the Californias, in 1790, when she signed the Convention of Nootka; and also subsequently, in 1792, when Gray first entered the mouth of the Columbia. If then Louisiana embraced the country west of the Rocky Mountains, to the south of 49°, it must have embraced the Columbia itself, and consequently Gray’s discovery must have been made in a country avowedly already appropriated to Spain; and if so appropriated, necessarily included, with all other Spanish possessions and claims in that quarter, in the stipulations of the Nootka Convention.

As the rights supposed to be derived from the acquisition of Louisiana were on this occasion for the first time set up by the United States, and formed a leading topic in Mr. Gallatin’s counter-statement, their novelty, as well as the important consequences attempted to be deduced from them, entitled them to precedence in the order of inquiry over the derivative Spanish title, and the original title of the United States, the more so, as the two latter have been already briefly examined. It would seem that Mr. Gallatin did not attempt to extend the boundaries of the colony of Louisiana, beyond the valley of the Mississippi and its tributaries. Crozat’s grant would of itself be evidence against any extension of the French title in this respect. But he contended, that “by referring to the most authentic French maps, New France was made to extend over the territory drained by rivers entering into the South Seas. The claim to a westwardly extension to those seas was thus early asserted, as part, not of Louisiana, but of New France. The king had reserved to himself, in Crozat’s grant, the right of enlarging the government of Louisiana. This was done by an ordinance dated in the year 1717, which annexed the Illinois to it, and from that time, the province extended as far as the most northern limit of the French possessions in North America, and thereby west of Canada or New France. The settlement of that northern limit still further strengthens the claim of the United States to the territory west of the Rocky Mountains.”

The meaning of this passage is rather obscure, but it seems to imply, that by the annexation of the Illinois the province of Louisiana was extended to the most northern limit of the French possessions in North America, and thereby cut off the western portion of Canada or New France, and so consequently extended itself to the South Seas. If this be the correct view of the argument, then it may be confidently asserted, that neither of these positions can be established. In the first place, Crozat’s grant, on which the United States expressly and formally relied in the negotiations with Spain, defined the country of Louisiana to be bounded on the west by New Mexico, on the east by Carolina, and northwards to comprise the countries along the River St. Louis (Mississippi) from the sea-shore to the Illinois, together with the River St. Philip, formerly called the Missouries River, and the St. Jerome, formerly called Wabash, with all the countries, territories, lakes in the land, and the rivers emptying directly or indirectly into that part of the river St. Louis. The words of the grant, if strictly interpreted, limit the province on both sides of the Mississippi to that part from the sea-shore to the Illinois, as both the Missouri and the Wabash (Ohio) unite with the Mississippi below the Illinois. But it seems to have been practically held, that Louisiana extended along the western bank of the Mississippi to its source. Thus we find in Jefferys’ History of the French Dominions in America, published in 1760, Louisiana thus described:—“The province of Louisiana, on the southern part of New France, extends, according to the French geographers, from the Gulf of Mexico in about 29° to near 45° north lat. on the western side, (the sources of the Mississippi being laid down in Jefferys’ map in about 45°,) and to near 39° on the eastern, and from 86° to near 100° W. longitude from London. It is bounded on the north by Canada, on the east by the British colonies of New York, Pennsylvania, Maryland, Virginia, North and South Carolina, Georgia, and by the peninsula of Florida; on the south by the Gulf of Mexico; and lastly, on the west by New Mexico.” This description evidently omits the Illinois, but the annexation of the Illinois in 1717 did not give to the province of Louisiana the indefinite extent northward which Mr. Gallatin suggests, for the Marquis de Vaudreuil, in ceding the province of Canada to Sir J. Amherst, in 1760, according to his own letter, (Annual Register, 1761, p. 168,) expressly described Louisiana as extending on the one side to the carrying-place of the Miamis, and on the other to the head of the river of the Illinois. The Illinois country itself was a limited district, watered by a river of that name, which had been so called from an Indian nation settled on its banks. This tribe or nation was said to have migrated from the west, along the banks of the Moingona, (the Rivière des Moines,) down to its junction with the Mississippi: it had then established itself a little lower down on the eastern side of the Mississippi, in an exceedingly fertile valley, watered by a tributary of that river, to which it gave its own name of Illinois.

The French settlement was in this district, according to Jefferys: its commodious situation enabled it to keep up the communication between Canada and Louisiana, and the fertility of the soil rendered it the granary of Louisiana. It may be perfectly true that Illinois was the most northern limit of the French possessions in North America, if by the term possessions is meant the territory in which they had made settlements; but if the term is intended to include the territory in which they claimed a right to found settlements, the statement would not be correct.