It remains to be considered whether the practice of nations has attached different considerations to the flag in respect to discoveries. Discoveries, however, as forming the ground-work of territorial title, are in themselves technical. They are inchoate acts of sovereignty. “Even in newly-discovered countries,” said Lord Stowel, in the case of the Fama, already cited, “where a title is meant to be established, for the first time, some act of possession is usually done and proclaimed as a notification of the fact.” It is not, therefore, the mere sight of land which constitutes a discovery, in the sense in which the practice of nations respects it, as the basis of territorial title; there must be some formal act of taking possession, which, as being an act of sovereign power, can only be performed through a commission from the sovereign. Thus Vattel, in the passage so frequently quoted, says, “The practice of nations has usually respected such a discovery, when made by navigators who have been furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of the nation.”
The conditional title by discovery is entirely the creature of the comity of nations; it has no foundation in the law of nature, according to which, if the discoverer has not occupied the territory, it would be presumed to remain vacant, and open to the next comer. For such purposes, however, the citizen or subject is not regarded as the instrument of his sovereign, unless he bears his commission, when his acts are respected as public acts, and are operative as between nation and nation.
It would thus appear that the first entering of the mouth of the Columbia River by Gray, being the act of a private citizen, sailing in a private ship for the purposes of trade, under the mercantile flag of his country, was not in the received sense of the word a discovery, which, according to the practice of nations, could lay the foundation of a title to territorial sovereignty. It does not satisfy the required conditions upon which alone the comity of nations would respect it. When therefore Mr. Buchanan says, “Besides, beyond all doubt this discovery was made by Gray, and to what nation could the benefit belong, unless it be to the United States,” he assumes that the comity of nations will attach benefit to such a discovery, contrary to the practice of nations. It is thus unnecessary to decide to what nation the benefit will belong, in a case in which no benefit can be held to have resulted. On the other hand, it is admitted by both of the American Secretaries of State, that the discovery of the mouth of the Columbia, in the popular sense of the word, was made by the Spanish navigator Heceta, some years before Gray visited the coast. It consequently follows that Gray achieved the first exploration, and not the discovery of the mouth of the river, even in the popular sense of the term.
In respect to the prior exploration of the Columbia River from its head-waters, by Lewis and Clarke, in 1805-6, Mr. Calhoun, having conducted the expedition, which had been despatched under the auspices of the Government of the United States in the spring of 1804, as far as the head-waters of the Missouri, states that “in the summer of 1805, they reached the head-waters of the Columbia River. After crossing many of the streams falling into it, they reached the Kooskooskee, in lat. 43° 34′, descended that to the principal northern branch, which they called Lewis’s; followed that to its junction with the great northern branch, which they called Clarke; and thence descended to the mouth of the river, where they landed, and encamped on the north side, on Cape Disappointment, and wintered.” Mr. Buchanan, in referring to this part of Mr. Calhoun’s argument, which he did not consider it necessary to repeat, observed that he had shown, “that Messrs. Lewis and Clarke, under a commission from their Government, first explored the waters of this river almost from its head-springs to the Pacific, passing the winter of 1805 and 1806 on its northern shore, near the ocean.” These statements however do not correspond with the facts themselves which they profess to represent.
Mr. Rush, in the negotiations of 1824, had set up for the United States an exclusive claim to the whole territory between 42° and 51° north, on the ground that “it had been ascertained that the Columbia River extended by the River Multnomah to as low as 42°, and by Clarke’s River to a point as high up as 51°, if not beyond that point.” The obscurity in which the geographical relations of the Oregon territory were at that time involved, might, to a certain extent, excuse the mis-statement of Mr. Rush on this occasion, for, as already observed, it has been subsequently ascertained that the source of the Multnomah is in about 43° 45′, and that of Clarke’s River, in 45° 30′; but Mr. Calhoun’s statement involves an historical as well as a geographical inaccuracy, which, under the circumstances, seems to have been intentionally put forward, since it is repeated by Mr. Buchanan. It is presumed that in the copy of the correspondence which has been circulated in the public journals, and which has been published in a separate form by Messrs. Wiley and Putnam of Waterlooplace, there is a misprint in Mr. Calhoun’s describing Lewis’ River as the principal northern branch, more particularly as Clarke’s River is immediately after spoken of as the great northern branch. Lewis’ River must evidently have been intended to be described as the principal southern branch, being the river on which the Shoshonee or Snake Indians fish, and which the travellers reached on descending the Kooskooskee. This inaccuracy may be passed over as an error of the press, but in respect to the next assertion of Mr. Calhoun, that Lewis and Clarke followed this river to its junction with the great northern branch, which they called Clarke’s River, it is not borne out by the account which Lewis and Clarke themselves give. On Friday, Sept. 6, Captain Clarke and his party reached the first river on the western side of the Rocky Mountains, to which they gave the name of Clarke’s River, (Travels, ch. xvii.,) running from south to north, and which, from the account of the natives, they had reason to suppose, after going as far northward as the head-waters of the Medicine River, (a tributary of the Missouri,) turned to the westward and joined the Tacoutche-Tesse River. It must not be forgotten that the Tacoutche-Tesse, discovered by Alexander Mackenzie in 1793, was supposed to be the northernmost branch of the Columbia down to so late a period as 1812. Thus Alexander von Humboldt, in his New Spain, (l. i., c. 2,) writes:—“Sous les 54° 37′ de latitude boreale, dans le parallèle de l’île de la Reine Charlotte, les sources de la rivière de la Paix (Peace River) ou d’Ounigigah, se rapprochent de sept lieues des sources du Tacoutché-Tessé, que l’on suppose être identique avec la rivière de Colombia. La première de ces rivières va à la mer du Nord, après avoir mêlé ses eaux à celles du lac de l’Esclave et à celles du fleuve Mackenzie. La seconde rivière, celle de Colombia, se jette dans l’Océan Pacifique près du Cap Disappointment, au sud de Nootka-Sound, d’après le célèbre voyageur Vancouver, sous les 46° 19′ de latitude.”
Mr. Greenhow (p. 285) says, “Three days afterwards they entered the principal southern branch of the Columbia, to which they gave the name of Lewis: and in seven days more they reached the point of the confluence with the larger northern branch, called by them the Clarke.” Such, however, is not the account of the travellers, who state that, having followed the course of the Lewis River, they reached on the 16th of October its junction with the Columbia River, (chap. xviii.,) the course of which was “from the northwest,” as Captain Clarke ascertained by ascending it some little distance. They nowhere, throughout the account of their travels, call this main river by any other name than the Columbia: they nowhere speak of it by the name of Clarke’s River; it is a reflection on their memory to represent them as supposing that this great northern branch was the river to which they gave the name of Clarke, for they fully believed, when they reached the main stream, that they had reached the Tacoutche-Tesse of Mackenzie, and at the same time the Columbia of Gray and Vancouver, of which they considered Clarke’s River to be merely a tributary. The names of Lewis and Clarke are totally unconnected with the great northern branch of the Columbia River, which was discovered and first explored from its sources in about 52° N. L., by Mr. Thomson, the surveyor or astronomer of the North-west Company, in 1811. This is an important fact, inasmuch as the exclusive claim of the United States was advanced in 1824, to the territory as far north as 51°, expressly on the ground that Clarke’s River extended as far north as that parallel, or even beyond that point, which is not the case. This northern branch, down which Mr. Thomson first penetrated, is entitled to be considered as the main branch of the Columbia, on the well-known principle that the sources most distant from the sea are regarded as the true sources of a river, according to which doctrine the name of Columbia has been in practice retained for this northern branch, whilst distinctive names have been given to all the southern tributaries.
Mr. Calhoun continues to say, “and thence they (Lewis and Clarke) descended to the mouth of the river, where they landed, and encamped on the north side, on Cape Disappointment, and wintered.” The meaning of this passage might be doubtful, unless Mr. Buchanan had cleared it up by his expression of “passing the winter of 1805 and 1806 on its northern shore, near the ocean.” When it is remembered that it is the possession of the north bank of the river which is contested by the two parties to the negotiation; and that the incidents of this expedition are formally alleged, on the side of the United States, as forming part of the ground-work of their exclusive title, and that the British negotiators have objected throughout to the alleged completeness of the title of the United States, on the express ground that it is at best an aggregate of imperfect titles, and that the distinction between a perfect and imperfect title is not one of degree, but of kind, it may not be unimportant to remark, that Lewis and Clarke passed the winter of 1805-6 on the southern shore of the Columbia, in an encampment on a point of high land on the banks of the river Netul. It is perfectly true that, having proceeded down the Columbia as far as the roughness of the waves would allow them, they landed on the north side on the 16th of November, and encamped on the shore near a village of the Chinnook Indians, just above high-water mark, where Captain Clarke remained for nine days, until Captain Lewis had succeeded in selecting a favourable spot for their winter’s encampment; but the locality where they encamped and wintered, was on the south side of the Columbia, amongst the Clatsop Indians, and from this very circumstance they gave to it the name of Fort Clatsop, which is so marked down in the map prefixed to the travels of Lewis and Clarke, with the further designation of “The wintering post of Captains Lewis and Clarke in 1805 and 1806.” Had not Mr. Calhoun specified the locality of this winter’s encampment as an element of the cumulative title of the United States, and had not Mr. Buchanan repeated the statement of his predecessor more explicitly, it would not have been thought necessary to discuss the circumstances so fully; but as one object of this inquiry is to clear up the facts of the case, which, from the nature of the subject, are obscure, if this error of statement had not been pointed out, it might have tended to increase the existing intricacy of the question, more particularly when it has an official character impressed upon it. It can hardly be supposed to be an error of the press, since Cape Disappointment, which is on the north bank, is referred to by Mr. Calhoun as adjoining the spot where they “encamped and wintered.”
The result of this inquiry cannot be better summed up than in the words of Mr. Pakenham’s counter-statement:—“With respect to the expedition of Lewis and Clarke, it must, on a close examination of the route pursued by them, be confessed, that neither on their outward journey to the Pacific, nor on their homeward journey to the United States, did they touch upon the head-waters of the principal branch of the Columbia River, which lie far to the north of the parts of the country traversed and explored by them.
“Thomson, of the British North-west Company, was the first civilised person who navigated the northern, in reality the main branch of the Columbia River, or traversed any part of the country drained by it.
“It was by a tributary of the Columbia that Lewis and Clarke made their way to the main stream of that river, which they reached at a point distant, it is believed, not more than 200 miles from the point to which the river had been previously explored by Broughton.