“And his Catholic Majesty assures to them by these articles the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated.”
In this case it will be seen that his Catholic Majesty granted to Great Britain the usufructuary right, or, according to the language of the Civil Law, Jus utendi, fruendi, salvâ rerum substantiâ, of the peculiar produce of the soil of the Bay of Honduras, reserving to himself the property of the soil, or the territory in chief.
But on looking once more at the words of the 3d article, it was agreed between the two contracting parties, that “their respective subjects shall not be disturbed or molested either in navigating or carrying on their fisheries in the Pacific Ocean or in the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country, or of making settlements there.” Now the only pretext for such disturbance or molestation would be the claim of territorial right or sovereignty: and that pretext being formally relinquished by the stipulation not to disturb, the claim of territorial right, as founded on considerations anterior to the treaty, was mutually abandoned by either party. Again, the subjects of either party were declared entitled to make settlements in places not already occupied. If now there was a reservation of territorial right in chief by one party, then the families settling there, which is in effect colonising, (for the cultivation of the soil must be allowed them,) could not be the subjects of the other party, if they settled and became domiciled there; yet they are acknowledged to retain their character. Now, such as the subject is, such is the jurisdiction. If, for instance, the absolute and sole territory of the north-west coast of America, exclusive of any other Power, was possessed and retained by Spain, then the jurisdiction over all persons settling there belonged to Spain: the residents in that territory were the subjects of Spain pro hâc vice, wheresoever they were born, agreeably to the principle admitted all over Europe, that every man is the subject of the jurisdiction and territory in which he is domiciled. But British subjects settling in the places not already occupied on the north-west coast of America could not thereby be divested of the character of their original domicile, for it was only in such character that they were entitled not to be disturbed or molested in their settlements,—it was only under the authority and protection of a British sovereign that they were entitled to set foot upon the territory. Other considerations will readily suggest themselves, but it is unnecessary to pursue the subject further.
These negotiations were brought to a close by the signature of the Convention of 1827, by which the provisions of the 3d article of the Convention of 1818 were further indefinitely extended, it being competent however for either party to abrogate the agreement, on giving twelve months’ notice to the other party.
CHAPTER XVII.
NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT BRITAIN IN 1844-5.
General line of Argument on either Side.—Original Title of the United States.—Nationality of a Merchant Ship.—Mr. Buchanan’s Statement.—Mr. Rush’s View.—The Practice of Nations makes a Distinction between public and private Vessels.—Tribunals of the United States.—Laws of South Carolina.—The Distinction rests on the Comity of Nations.—It is not arbitrary, at the Will of each Nation, nor can it be disturbed.—Dr. Channing on the Character of Merchant Ships.—The taking Possession of a vacant Country for the Purpose of Settlement, is an Act of Sovereignty.—Mr. Gallatin’s Letter to Mr. Astor on the Flag.—Discoveries, as the Groundwork of Territorial Title, technical.—Lord Stowell.—Inchoate Acts of Sovereignty.—Vattel.—Title by Discovery, the Creature of the Comity of Nations.—Gray’s first entering the Mouth of the Columbia does not satisfy the required Conditions.—Heceta’s Discovery, in the popular sense of the Term.—Gray’s the first Exploration of the Mouth.—Expedition of Lewis and Clarke.—Mr. Rush’s Mis-statement in 1824, as to the Sources of the Multnomah, and of Clarke’s River.—Inaccuracy in the Statements of Mr. Calhoun, and of Mr. Buchanan.—The Great Northern Branch of the Columbia not called Clarke’s River by Lewis and Clarke.—Clarke’s River supposed by them to be a Tributary of the Tacoutche-Tesse.—The Tacoutche-Tesse reputed to be the northernmost Branch of the Columbia River till 1812.—Humboldt’s New Spain.—Junction of the Lewis with the Columbia River.—The northernmost Branch of the Columbia first Explored by Thomson.—Lewis and Clarke did not encamp and winter on the north Bank of the Columbia.—Fort Clatsop on the south Bank.—Mr. Packenham’s Counter-statement.—Settlements of the United States.—Mr. Calhoun’s Statement.—Mr. Henry’s trading Fort.—Failure of Captain Smith’s Undertaking.—Mr. Astor’s Adventure.—Astoria on the south Bank of the Columbia.—Rival Station of the North-west Company on the Spokan River.—Astoria not a national Settlement.—No Claim advanced to it by the United States in the Negotiations preceding the Florida Treaty.—Astoria transferred to the North-west Company by Sale.—The United States formally placed in possession of it in 1818.—Mr. Calhoun’s Argument.—Confusion of the Settlement with the Territory.—The Right of Possession.—The Question at issue in 1818.—Mr. Rush did not then assert a perfect Title.—Mr. Buchanan now maintains an exclusive Title.—The derivative Title of Spain.—Inconsistency of the United States Commissioners.—Effect of the Nootka Convention.—Contrast of the Claims of the Two Governments.—Mr. Calhoun’s Admission as to Heceta’s Discovery.—True Character of the original Title of the United States.—Not an exclusive Title.—Exclusiveness does not admit of Degree.—The Title of Spain imperfect by express Convention.—No Rights granted by the Nootka Convention.—Mr. Buchanan’s Statement.—Examination of the Argument.—Opinions expressed in Parliament in 1790.—Mr. Pitt’s Declaration.
The unexpected publication of the correspondence between Mr. Pakenham, the British Minister, and Messrs. Calhoun and Buchanan, the Secretaries of State at Washington, requires that the more important arguments in their respective statements should be briefly examined, lest the present inquiry should be thought incomplete. No substantially new topic seems to have been advanced during the negotiation, but the treatment of several points in the argument on either side was materially modified. The Commissioners of the United States appear on this occasion to have relied more immediately on the original title of the United States than on the derivative Spanish title which Mr. Rush first set up in 1824, or the derivative French title which Mr. Gallatin brought forward in 1826. The British Minister, on the other hand, rested his position more decidedly on the recognition of the title of Great Britain by the Convention of the Escurial, and less on the general proof of it by discovery and settlement.