By the Treaty of Utrecht, the British had precluded themselves from passing over the limits of the territory of the Bay of Hudson, and all the country south of those limits would be considered amongst “the places appertaining to the French,” in other words, would be part of New France. But the southern boundary of the Hudson’s Bay territory would be much to the northward of the Illinois country; the intermediate district, it is true, was peopled with various Indian tribes, but the French, as against Great Britain, by the Treaty of Utrecht, had an exclusive title to the country. By the Treaty of Paris in 1763, that title passed from France to Great Britain, and in pursuance of the rights so acquired by the crown of England, a proclamation was issued, reserving to the Indians, as hunting grounds, all the territories not included within the government of Quebec, or the limits of the territory granted to the Hudson’s Bay Company, and enjoining all persons whatever, who should have seated themselves in them, to remove forthwith from such settlements. (Annual Register, 1763, p. 212.) It would thus appear, if New France ever extended across the continent of America to the Pacific Ocean, the portion of it north of the sources of the Mississippi, and of the Illinois River, passed into the hands of Great Britain, on the ratification of the Treaty of Paris. The claim, however, to the westwardly extension of New France to the Pacific Ocean, requires some better evidence than the maps of the French Geographers. A map can furnish no proof of territorial title: it may illustrate a claim, but it cannot prove it. The proof must be derived from facts, which the law of nations recognises as founding a title to territory. Maps, as such, that is, when they have not had a special character attached to them by treaties, merely represent the opinions of the geographers who have constructed them, which opinions are frequently founded on fictitious or erroneous statements: e. g., the map of the discoveries in North America by Ph. Buache and J. N. de Lisle, in 1750, in which portions of the west coast of America were delineated in accordance with De Fonte’s story, (supra, Ch. IV.,) and the maps of north-west America at the end of the seventeenth and beginning of the eighteenth centuries, which represent California as lately ascertained to be an island. An examination of the collection in the King’s Library at the British Museum, will remove all scepticism on this head. Such documents are entitled, of themselves, to far less consideration from foreign Powers, than the charters of sovereigns. These, indeed, may be binding on the subjects of the sovereigns by their own inherent authority, but against other nations, they must be supported expressly, on the face of them at least by some external authority, which the law of nations acknowledges. Thus, we find generally the title of discovery recited in the preamble of charters; it is, however, competent for other nations to dispute this title, or to dispute the extent to which the grant goes. The charter of Carolina and Georgia, elsewhere recited, will furnish a case in point. In these the grant extends westward to the South Seas, but this would convey no title to the settlers against the French, who barred the way to the South Seas by their settlements in Louisiana, and who would dispute the asserted claim, so that the charters would be inoperative in their full extent.
But when Mr. Gallatin stated, that from the ordonnance of 1717 the province of Louisiana extended as far as the most northern limit of the French possessions in North America, and thereby west of Canada or New France, he has probably overlooked the words of the ultimatum of the Court of France, of the 5th August 1761, remitted by the Duc de Choiseul to Mr. Stanley, the British plenipotentiary, in the course of the negotiations in that year after the surrender of Canada:—“The King of France has, in no part of his memorial of propositions, affirmed that all which did not belong to Canada appertained to Louisiana; it is even difficult to conceive such an assertion could be advanced. France, on the contrary, demanded that the intermediate nations between Canada and Louisiana, as also between Virginia and Louisiana, shall be considered as neutral nations, independent of the sovereignty of the two crowns, and serve as a barrier between them.” (Historical Memorial of the Negotiations, published at Paris by authority, 1761. May be referred to in Jenkinson’s Coll. of Treaties, vol. ii.) Mr. Gallatin says elsewhere, in alluding to royal charters:—“In point of fact, the whole country drained by the several rivers emptying into the Atlantic Ocean, the mouths of which were within those charters, has from Hudson’s Bay to Florida, and it is believed without exception, been occupied and held by virtue of those charters. Not only has this principle been fully confirmed, but it has been notoriously enforced, much beyond the sources of the rivers on which the settlements were formed. The priority of the French settlements on the rivers flowing westwardly from the Alleghany Mountains into the Mississippi, was altogether disregarded; and the rights of the Atlantic colonies to extend beyond those mountains, as growing out of the contiguity of territory, and as asserted in the earliest charters, was effectually and successfully enforced.” In reply to these remarks it may be observed, that the limits of the Hudson’s Bay territory were settled by the Treaty of Utrecht, in 1713, those of the Atlantic colonies by the Treaty of Paris, 1763, and in the preliminary negotiation no allusion is any where made to rights founded on charters, or to rights of contiguity. On the contrary, in regard to the Hudson’s Bay territories, the peaceable acquiescence of the Marquis de Frontenac, then Governor of Canada, in the settlement of the Bay of Hudson by the English company, was maintained to be a bar to any claims on the part of the French to question, at a subsequent period, the title of which the British crown asserted on the grounds of discovery. Again, in respect to the Atlantic colonies, their right to extend themselves to the banks of the Mississippi was never enforced against the French, “as growing out of the contiguity of territory, and as asserted in the earliest charters.” On the contrary, in the negotiations of 1761, it was admitted by Great Britain, that in respect to the course of the Ohio, and the territories in those parts, the pretensions of the two crowns had been contentious before the surrender of Canada, and in respect to the nations on the east bank of the Mississippi, Great Britain confined herself to asserting that they had been always reputed to be under her protection, and proposed to the French King, that “for the advantage of peace, he should consent to leave the intermediate countries under the protection of Great Britain, and particularly the Cherokees, the Creeks, the Chicosaws, the Chactaws, and another nation, situate between the British settlements and the Mississippi.” The result of these and subsequent negotiations was, that France, by the seventh article of the Treaty of Paris, agreed that the limits of the British and French territories respectively should be fixed by a line drawn along the middle of the Mississippi, from its source to the River Iberville [depuis sa naissance jusqu’à la rivière d’Iberville,] and ceded to Great Britain all that she possessed or was entitled to possess, on the left bank of the Mississippi, with the exception of New Orleans.
This cession by France of all that she possessed, or was entitled to possess, on the left bank of the River Mississippi, would convey to Great Britain all her title to the Illinois and other districts north of the Illinois country, if she possessed any; but she could only possess any title to them as forming part of the dependencies of Canada or New France. Out of these, indeed, the province of Louisiana had been carved by the grant to Crozat in 1712, and from these the Illinois territory had been detached in 1717, by the charter of Law’s Mississippi Company; the remainder, such as it was, had retained its original character of New France or Canada unchanged, as well as its original limits, such as they had been determined to be, either by special commissioners, in pursuance of the provisions of the Treaty of Utrecht, or by an understanding between the crowns of France and Great Britain. If therefore the French had any possessions in America north of the sources of the Mississippi, as Louisiana did not extend further north than those sources, they must have been part of the original province of Canada, and have been ceded to Great Britain with Canada and all her dependencies. The western boundary of Louisiana was never attempted to be extended by the French beyond the limits of Crozat’s grant, by which Louisiana was expressly defined to be bounded by New Mexico on the west, and impliedly by the head-waters of the Missouri river.
“The actual possession,” Mr. Gallatin maintained, “and populous settlements of the valley of the Mississippi, including Louisiana, and now under one sovereignty, constitute a strong 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. If some trading factories on the shores of Hudson’s Bay have been considered by Great Britain as giving an exclusive right of occupancy as far as the Rocky Mountains; if the infant settlements on the more southern Atlantic shores justified a claim thence to the South Seas, and which was actually enforced to the Mississippi, that of the millions already within the reach of those seas cannot consistently be resisted. For it will not be denied that the extent of contiguous territory, to which an actual settlement gives a prior right, must depend, in a considerable degree, on the magnitude and population of that settlement, and on the facility with which the vacant adjoining land may, within a short time, be occupied, settled, and cultivated by such population, as compared with the probability of its being thus occupied and settled from another quarter.”
In examining Mr. Gallatin’s argument in the above passage, it will be seen that he assumes, as the foundation of it, two suppositions as to the Hudson’s Bay factories and the settlements on the Atlantic shores, which are not admissible. Great Britain never considered her right of occupancy up to the Rocky Mountains to rest upon the fact of her having established factories on the shores of the Bay of Hudson, i. e., upon her title by mere settlement, but upon her title by discovery confirmed by settlements, in which the French nation, her only civilised neighbour, acquiesced, and which they subsequently recognised by treaty: and in regard to the infant settlements on the Atlantic shores, they were planted there either by virtue of discovery, as in the case of Virginia, or else upon the plea of the territory “not yet being cultivated or planted, and only inhabited by some barbarous people,” as in the case of the Carolinas, which, though occupied successively for a time by Spanish and by French settlers, had been abandoned by all European nations from the year 1567 till 1663, when Charles II. granted letters patent to the Earl of Clarendon and seven others, asserting a title to it by virtue of the discoveries of Sebastian Cabot, and its abandonment by other Powers. If, therefore, the British crown asserted a right of extending its settlements beyond the heads of the rivers emptying themselves into the Atlantic to the South Seas, it was not by virtue of its infant settlements, but by the same title, whatever it might be, which, according to the practice of nations, would authorise it to make those settlements, since the claim was asserted in the very charters which empowered the settlement to be made. But the settlement was limited to lands “not yet cultivated or planted,” in other words, to vacant territory. Was the claim then actually enforced by the British to the Mississippi? The history of the Treaty of Paris furnishes a negative answer to the question. The claim, indeed, which Mr. Gallatin attempts to set up, is to an exclusive title by contiguity. But such a title can only be founded on necessity, when the law of self-preservation is paramount to all other considerations. Convenience alone will not establish an absolute title, though it may found a conditional title, subject to the acquiescence of other States: but the reason which Mr. Gallatin alleged in support of the title by contiguity; namely, the facility with which the vacant territory would be occupied by the teeming population of the United States, is but a disguised appeal to the principle of the vis major, and strikes at the root of the fundamental axiom of international law, that all nations are upon a footing of perfect equality as to their obligations and rights. “Power or weakness,” observes Vattel, “does not in this respect produce any difference. A dwarf is as much a man as a giant: a small republic is no less a sovereign state than the most powerful kingdom;” so that every argument which rests on the grounds that the millions already within reach of the Pacific Ocean, entitle the United States by their numbers to the occupation and sovereignty of the country, to the exclusion of Great Britain, is out of place where questions of greater right, and not of greater interest, are under discussion. It should however not be forgotten, in discussing the probability of the Oregon Territory being occupied from any other quarter than the United States, that British subjects are restricted by the charter of the Hudson’s Bay Company from settling there, it being declared in that charter, “that no British subjects, other than and except the said Governor and Company, and their successors, and the persons authorised to carry on exclusive trade by them, shall trade with the Indians” within such parts of North America as are “to the northward and to the westward of the lands and territories belonging to the United States of America.”
In respect to the derivative title from Spain, Mr. Gallatin, in admitting the Convention of the Escurial to be now in force, as being of a commercial nature, and therefore renewed, in common with all the treaties of commerce existing previously to the year 1796, between Spain and Great Britain, by the treaty signed at Madrid on August 28, 1814, (Martens’ Traités, Nouveau Recueil, iv., p. 122,) contended in the first place that the word “settlement” was used in the third and fifth articles of the convention, in the narrower sense which Mr. Rush had endeavoured to attach to it in the negotiations of 1824, namely, as “connected with the commerce to be carried on with the natives;” and, secondly, that if the word “settlement” was employed in its most unlimited sense, still that the provisions of the convention had no connection with an ultimate partition of the country for the purposes of permanent colonisation. The truth of the last observation, to a certain extent, is self-evident, from the fact of the ultimate partition of the country being still the subject of discussion; but in respect to the word “settlement,” some objections to the attempt to narrow its meaning have been already stated, and may be referred to above, (p. 291-297.) A few further observations, however, may not be superfluous. Mr. Gallatin, in another part of his counter-statement says, “It is also believed, that mere factories, established solely for the purpose of trafficking with the natives, and without any view to cultivation and permanent settlement, cannot, of themselves, and unsupported by any other consideration, give any better title to dominion and absolute sovereignty, than similar establishments made in a civilised country.”
If we admit, for the sake of the argument, that temporary trading stations, erected without any view to cultivation and permanent settlement, cannot of themselves establish a title to exclusive dominion and sovereignty, this very fact alone would be conclusive to show, from the provisions of the fifth article, that such trading stations were not intended by the word “settlement” in the Treaty of the Escurial. The settlements there contemplated were only to be made in places not already occupied, and further, “in all places wherever the subjects of either shall have made settlements since the month of April 1789, or shall hereafter make any, the subjects of the other shall have free access, and shall carry on their trade without any disturbance or molestation.” Unless the settlements here alluded to would have been considered to give a title of exclusive sovereignty by the recognised law of nations to the party which had formed them, if not otherwise specified, this provision would have been not merely uncalled for, but on the well-known principle of “expressio unius est exclusio alterius,” would have tended to narrow rather than to enlarge the rights of the other party. The reason, however, of this “special provision” will be obvious, when it is called to mind that both Spain and Great Britain carefully excluded foreign Powers from all trade with their colonies, and that Spain had asserted in the preliminary negotiations a right of “sovereignty, navigation, and exclusive commerce to the continent and islands of the South Sea,” and had also maintained, that “although she might not have establishments or colonies planted upon the coasts or in the ports in dispute, it did not follow that such coast or port did not belong to her.” Unless therefore some such provision had been introduced into the treaty, the subsequent settlements on the north-west coast would have been closed against all foreign traders, in conformity to the general laws of both countries.
But if Mr. Gallatin is justified in advancing, as a principle of international law, that “mere factories, established solely for the purpose of trafficking with the natives, and without any view to cultivation and permanent settlement,” such as he alleges the trading posts of the North-west Company to be, cannot of themselves give a good title to dominion and absolute sovereignty, he cuts away from under the United States the ground upon which they had set up their original title to exclusive sovereignty. For the factory of the Pacific Fur Company at Astoria, on the south bank of the Columbia, would be, according to this view, quite as inoperative for the purpose of constituting a title by settlement in favour of the United States as that of the Hudson’s Bay Company at Fort Vancouver, on the northern Bank, would be ineffectual for a similar purpose in favour of Great Britain; and, à fortiori, the passing visit of a merchant ship, such as the Columbia, despatched solely for the purpose of trafficking with the natives, and not with the object of making discoveries, or with any authority to take possession of territory for purposes of permanent settlement, could never be held entitled to the consideration which the United States claim to have attached to it.
Mr. Gallatin observed that “the stipulations of the Nootka convention permitted promiscuous and intermixed settlements everywhere, and over the whole face of the country, to the subjects of both parties, and even declared every such settlement, made by either party, in a degree common to the other. Such a state of things is clearly incompatible with distinct jurisdiction and sovereignty. The convention therefore could have had no such object in view as to fix the relations of the contracting parties in that respect.” If, however, it can be shown that such a state of things is not incompatible with distinct jurisdiction, the argument will fall to the ground.
It appears then to have been decided in the United States Courts, that, “although the territorial line of a nation, for the purposes of absolute jurisdiction, may not extend beyond the middle of the stream, yet the right to the use of the whole river or bay for the purposes of trade, navigation, and passage, may be common to both nations.” (The Fame, 3 Mason 147, C. C. Maine, 1822, cited in Elliott’s American Diplomatic Code, vol. ii., p. 345.)