The Oregon Territory, Its History and Discovery

by Travers Twiss

“These facts, the undersigned conceives, will be found sufficient to reduce the value of Lewis and Clarke’s exploration on the Columbia to limits, which would by no means justify a claim to the whole valley drained by that river and its branches.”

Mr. Calhoun next proceeds to state the grounds on which, as alleged, priority of settlement was no less certain on the side of the United States:—“Establishments were formed by American citizens on the Columbia as early as 1809 and 1810. In the latter year a company was formed at New York, at the head of which was John Jacob Astor, a wealthy merchant of that city, the object of which was to form a regular chain of establishments on the Columbia River, and the contiguous coasts of the Pacific, for commercial purposes. Early in the spring of 1811, they made their first establishment on the south side of the river, a few miles above Point George, where they were visited in July following by Mr. Thomson, a surveyor and astronomer of the North-west Company, and his party. They had been sent out by that company to forestall the American company in occupying the mouth of the river, but found themselves defeated in their object. The American company formed two other connected establishments higher up the river: one at the confluence of the Okanegan with the north branch of the Columbia, about 600 miles above its mouth, and the other on the Spokan, a stream falling into the north branch, some fifty miles above.”

Mr. Calhoun, in making the above general allusion to establishments formed in 1809 and 1810, may be supposed to refer to a trading post founded by Mr. Henry, one of the agents of the Missouri Fur Company, on a branch of the Lewis River, the great southern arm of the Columbia. This post, however, was shortly abandoned in consequence of the hostility of the natives, and the difficulty of obtaining supplies, (Greenhow, p. 292.) It would, however, be rather an overstrained statement to describe this hunting station as an establishment formed on the Columbia, considering its very great distance from the junction of the Lewis River with the Columbia. Mr. Calhoun, however, may be alluding at the same time to the undertaking of Captain Smith, in the Albatross, in 1810, who is said by Mr. Greenhow to have attempted to found a trading post at Oak Point, on the south side of the Columbia, about forty miles from its mouth, and to have almost immediately abandoned the scheme. Such an attempt, however, can hardly be entitled to the character of a settlement. Beyond these two instances, it is believed that there is no occasion on record of the presence of citizens of the United States on the west side of the Rocky Mountains, during the years of 1809-10, which could give rise to the supposition of an establishment having been formed by them.

In respect, however, to Mr. Astor’s Adventure, the Pacific Fur Company was a mere mercantile firm, the formation of which originated with Mr. Astor, a German by birth, and ultimately a naturalized citizen of the United States. The original company was formed in 1810, and, according to Mr. Washington Irving, consisted of Mr. Astor himself, three Scotchmen, who were British subjects, and one native citizen of the United States. Three more Scotchmen, and two more citizens of the United States were subsequently admitted, so that the majority of the company were British subjects, and they had received an express assurance from Mr. Jackson, the British Minister at Washington, that “in case of a war between the two nations, they would be respected as British subjects and merchants,” [Greenhow, p. 295.] Mr. Astor stipulated to retain half the shares for himself, and in return to bear all the losses for the first five years, during which period the parties had full power to abandon and dissolve the association. A detachment of the partners arrived at the Columbia River in 1811, and formed a trading establishment on the southern bank of the river, on Point George, not far from the mouth, which they named Astoria. Mr. Washington Irving, who had his information from Mr. Astor himself, terms their establishment “a trading house,” [Chap. ix.] Not long after their arrival they received information from the Indians, that the North-west Company had erected a trading house on the Spokan River, which falls into the north branch of the Columbia, and they were preparing to dispatch a rival detachment to act as a counter-check to this establishment, when Mr. David Thomson, with a party under the protection of the British flag, having descended the Columbia from its northernmost source, arrived at Astoria. On his return Mr. Stuart, one of the partners of the Pacific Fur Company, accompanied Mr. Thomson’s party a considerable distance up the Columbia River, and established himself for the winter at the junction of the Okanegan with the Columbia, at about 140 miles from the Spokan River; here Mr. Stuart, according to Mr. Washington Irving, considered himself near enough to keep the rival establishment in check. It would thus appear that the earliest settlement on the Spokan River was made by the North-west Company, and from Mr. Washington Irving’s account, seems almost to have preceded the foundation of Astoria; for whilst the Astorians were occupied with their building, they heard from the Indians that white men “were actually building houses at the Second Rapids.” If, however, it was not antecedent, it was at least contemporaneous.

It can hardly be contended that the settlement at Astoria had a definite national character, much less that it could impart the national sovereignty of the United States, to the territory, wherein it was established. The Astorians might perhaps maintain their claim to the domain (dominium utile,) but that they should set up a title to the sovereignty (dominium eminens,) or be held to convey a title to any state which should choose to assert it through them, is not conformable to the practice of nations. But the plenipotentiaries of the United States contend that they have an exclusive title to the entire valley of the Columbia, by virtue of this settlement. Spain, however, did not admit this title in the negotiations preceding the Florida Treaty, nor did the United States venture to set it up. When Don Luis d’Onis, in resuming the negotiations, proposed, in his letter of January 16, 1819, (British and Foreign State Papers, 1819-20, p. 565,) to concede, on the part of his Catholic Majesty, as the boundary between the two states, “a line from the source of the Missouri, westward, to the Columbia River, and along the middle thereof to the Pacific Ocean,” and trusted it would be accepted, as presenting “the means of realizing the President’s great plan of extending a navigation from the Pacific to the remotest points of the northern seas, and of the ocean,” no claim was advanced to the valley of the Columbia; but Mr. Adams briefly stated, in reply, that “the proposal to draw the western boundary line between the United States and the Spanish territories on this continent, from the source of the Missouri to the Columbia River, cannot be admitted.” Again, when the Spanish commissioner, in his letter of February 1, 1819, stated that, “considering the motive for declining my proposal of extending the boundary line from the Missouri to the Columbia, and along that river to the Pacific, appears to be the wish of the President to include within the limits of the Union all the branches and rivers emptying into the said River Columbia,” and proposed to draw the boundary along the River S. Clemente, or Multnomah, to the sea; and delivered a project of a treaty, in which it was stipulated that his Catholic Majesty should cede all the country belonging to him eastward of the boundary line to the United States; no original title to the entire valley of the Columbia, no claim to the settlement of Astoria, as a national settlement, was advanced by the United States: yet Astoria was on the western side of the Multnomah or Willamette River, as it is now called, and was assumed in both the above proposals to be beyond the limits of “the dominions of the Republic.”

Astoria passed into the hands of the North-west Company by peaceable transfer. It was sold by the partners resident in the establishment, after they had dissolved the association, which, by the terms of the contract, the parties had power to do. When Captain Black, in his Britannic Majesty’s sloop-of-war the Racoon, arrived there in 1813, he did not capture Astoria, for it was not the property of an enemy, but he took possession of it in the name of his Britannic Majesty, and hoisted the British ensign; thereby formally asserting the sovereignty of Great Britain over the property of British subjects. In 1818, the government of the United States was formally placed in possession of Astoria; and this was the first occasion on which an act of sovereignty was exercised by that Power. Mr. Calhoun states that this act “placed our possession where it was before it passed into the hands of British subjects.” On the contrary, it placed Astoria in the hands of the government of the United States, in which hands it had never been before: for, antecedently to the transfer to the North-west Company by purchase, it was in the hands of an association, the majority of which were British subjects, who could not, according to any received principle of international law, be held to have represented the sovereignty of the United States.

It was admitted by Lord Castlereagh, in the discussions with Mr. Rush antecedent to the restoration of Astoria, that the United States were entitled to be reinstated there, and “to be the party in possession whilst treating of the title.” At that time the United States had confined their claims to the restitution of a post, which, as they asserted, “had been established by them on the Columbia River, and had been taken during the war, and consequently came within the provisions of the first article of the Treaty of Ghent.” Mr. Bagot, in his reply to Mr. Adams, of 26th November, 1817, (British and Foreign State Papers, 1821-22, p. 461,) stated that, “from the reports made to him, it appeared that the post had not been captured during the late war, but that the Americans had retired from it under an agreement made with the North-west Company, who had purchased their effects, and who had ever since retained peaceable possession of the coast.” The whole discussion was thus evidently limited to the settlement at Astoria; and Lord Castlereagh admitted, on the statement of the United States, that they had a primâ facie claim to be reinstated in the post, in conformity to the provisions of the treaty, and to be the party in possession whilst treating of the title.

Mr. Calhoun, in the further course of his argument, contends that, after this admission on the part of Lord Castlereagh, the Convention of 1818 “preserved and perpetuated all our claims to the territory, including the acknowledged right to be considered the party in possession;” and Mr. Buchanan, in still more explicit language, maintains the same position. “He claims, and he thinks he has shown, a clear title, on the part of the United States, to the whole region drained by the Columbia, with the right of being reinstated, and considered the party in possession whilst treating of the title; in which character he must insist on their being considered, in conformity with positive treaty stipulations. He cannot, therefore, consent that they shall be regarded, during the negotiations, merely as occupants in common with Great Britain. Nor can he, while thus regarding their rights, present a counter-proposal, based on the supposition of joint occupancy merely, until the question of title to the territory is fully discussed.” This argument is essentially unsound throughout. The title of the United States to possess the settlement, in other words, not to be excluded from the territory, is strangely confounded with the title to exclude the British from the entire territory. These titles are assumed to be identical, being most distinct. Great Britain does not require to be considered as an occupant in common of Astoria. The United States were never admitted by positive treaty stipulations to be the party entitled to be considered in possession of the whole region of the Columbia, which Mr. Buchanan maintains to have been conceded by Lord Castlereagh. But Great Britain does require to be considered as an occupant in common of the region of the Columbia, and the United States is entitled to the right of adverse possession as far as the settlement at the mouth of the river, on its south bank is concerned. What, however, is the effect of such a right of possession? Simply that, as far as the settlement of Astoria is concerned, it is not necessary for the United States to prove its right of dominion. Its right of possession is a valid right, unless a right of dominion can be established by some other Power. But Great Britain asserts no right of dominion,—she does not claim to evict the United States from its actual possession,—but, as she claims no exclusive title for herself, so she recognises no exclusive title in any other Power. The principle of a mutual right of occupancy of the territory was admitted, when it was agreed that the United States should be placed in possession sub modo, whilst treating of the title. The question, however, between the two governments was not one of law, but of fact. Issue had been joined in the previous letters between the Secretary of State and the Minister of Great Britain, at Washington: whilst the former asserted Astoria had been captured during the war, the latter maintained that it had passed into the hands of the North-west Company by peaceable purchase.

The United States asserted that Astoria had become a British possession by virtue of the jus belli, the operation of which was in this case expressly suspended by the first article of the Treaty of Ghent: on this plea they claimed that it should be restored to them. Great Britain, on the other hand, maintained that it had passed into the hands of the North-west Company by peaceable purchase: on this plea they contended that the United States were not entitled to demand its restoration. When, therefore, the United States acquiesced in the proposal of Lord Castlereagh, they admitted the legal effect of the fact asserted by Great Britain, if it could be substantiated. They thus admitted the common right of Great Britain to form settlements, by agreeing to treat of the title on the ground alleged by Great Britain, precisely as Great Britain admitted a corresponding right in the United States, by agreeing to discuss the alleged fact that Astoria had passed into the hands of the British jure belli, by which it was implied that it had been antecedently a possession of the United States. We thus find in the negotiations of 1818, which terminated in the Convention of the 20th October, concluded fourteen days after the actual restoration of Astoria, that Messrs. Gallatin and Rush nowhere hint at an exclusive title in the United States. “We did not assert,” they say in their letter to Mr. Adams, of October 20, 1818, “that the United States had a perfect right to that country, but insisted that their claim was at least good against Great Britain,” (British and Foreign State Papers, 1819-20, p. 169.) Yet, in the face of this solemn admission, at the commencement of the earliest negotiations, and of the fact that the title has been treated of on so many occasions, Mr. Buchanan now asserts that “our own American title to the extent of the valley of the Columbia, resting as it does on discovery, exploration, and possession—a possession acknowledged by a most solemn act of the British government itself, is a sufficient assurance against all mankind; whilst our superadded title derived from Spain extends our exclusive rights over the whole territory in dispute against Great Britain.”

Such is the outline of the grounds on which the United States set up an exclusive title to the entire valley of the Columbia, that is, a title to exclude Great Britain from making settlements there. Mr. Buchanan observes, that this title is “older than the Florida Treaty of February 1819, under which the United States acquired all the right of Spain to the north-west coast of America, and exists independently of its provisions. Even supposing, then, that the British construction of the Nootka Sound Convention was correct, it could not apply to this portion of the territory in dispute. A convention between Great Britain and Spain, originating from a dispute concerning a petty trading establishment at Nootka Sound, could not abridge the rights of other nations. Both in public and private law, an agreement between two parties can never bind a third, without his consent, expressed or implied.”