Mr. Buchanan thus appears disposed to renounce the derivative title of Spain, upon which, as completing the defects in the original title of the United States, considerable stress had been elsewhere laid, “supposing the British construction of the Nootka Convention to be correct:” in other words the commissioners of the United States claim to avail themselves of the provisions of this convention, if they can be made to support their title, but to repudiate them, if they should be found to invalidate it, which of course is inadmissible. But when Mr. Buchanan says, “A convention between Great Britain and Spain could not abridge the rights of other nations,” though the proposition be abstractedly true, yet on this occasion it does not apply. First of all, because Great Britain, in recognising the right of Spain to make settlements on the north-west coast in places not yet occupied, did not either at the time of the convention, or subsequently, recognise such a right as an exclusive right in respect to other nations. Secondly, because Spain, in recognising the right of Great Britain to make settlements in an analogous manner, did not thereby declare other nations excluded from making settlements; in fact, there is not a single word within “the four corners” of the treaty, which can be held to abridge the rights of other nations. Thirdly, because the United States, at the time when the convention was concluded, had no other right than that of making settlements, which Great Britain has never once maintained that the Nootka Convention abridged, nor does it at this moment contend so.
If, on the other hand, the United States had an exclusive title to the valley of the Columbia before the Treaty of Florida, or in other words, as asserted in 1824, to the entire territory between 51° and 42°, and that title existed independently of its provisions, it is difficult to understand the object of the protracted negotiations between Don Luis de Onis and Mr. Adams, which resulted in his Catholic Majesty first withdrawing from the Rocky Mountains to the Columbia River, then from the Columbia to the Multnomah or Willamette River, and finally ceding all his rights, claims, and pretensions to the territory north of the parallel of 42°. Mr. Buchanan’s position is untenable in the face of the negotiations antecedent to the Florida Treaty.
The original title, however, of the United States, does not satisfy the requirements of the law of nations, in the extent in which it is maintained to be effective. Let it be kept in mind that Great Britain has never claimed the exclusive privilege of settling on the north-west coast of America, to the north of the parts occupied by Spain, but she maintains her right not to be excluded from any places not already occupied. The United States, on the other hand, are not satisfied with claiming a right to make settlements, but they assert a right to exclude Great Britain from making settlements, and this, too, by virtue of an act performed by a private citizen, without any commission from the state, subsequent to the time when the right of Great Britain to make settlements had been formally recognised by Spain in a solemn treaty, and was thus patent to the civilised world.
This very act, however, Mr. Calhoun admits to be defective for the purpose of establishing an exclusive title, when he says, “Time, indeed, so far from impairing our claims, has greatly strengthened them since that period, for since then the Treaty of Florida transferred to us all the rights, claims, and pretensions of Spain to the whole territory, as has been stated. In consequence of this, our claims to the portion drained by the Columbia River—the point now the subject of consideration—have been much strengthened by giving us the incontestable claim to the discovery of the river by Heceta above stated.”
It is thus admitted, that the first entering of the River Columbia by Gray, was not a discovery, but an exploration. There can be no second discovery for the purpose of founding an exclusive title. Heceta’s discovery is incontestable for the purpose of barring any subsequent claim by discovery, and the original title of the United States, resolves itself into a title founded upon the first exploration of the entrance of the Columbia from the sea, and on the first exploration of its southern branches from the Rocky Mountains. Such a title, however, can neither from the nature of things, nor the practice of nations, establish a right to exclude all other nations from every part of the entire valley of the Columbia. On the contrary, the assertion of such a right is altogether at variance with the comity of nations, on which alone title by discovery rests. For, if the United States maintain that the discovery of the Columbia River, for the purpose of establishing a territorial title, dates from the enterprise of Gray, they set aside the discovery of Heceta, in opposition to the comity of nations; yet it is upon this very comity of nations that they must rely to obtain respect for their own asserted discovery.
But when Mr. Calhoun maintains that, by the Florida Treaty, the title of the United States was much strengthened by the acquisition of the incontestable claim to the discovery of the river by Heceta, he admits that the title of the United States was an imperfect title before that treaty; for a perfect title is incapable of being strengthened,—exclusiveness does not admit of degree. That the title of the United States to form settlements in the parts not occupied was strengthened by the Florida Treaty, is perfectly true. Great Britain, before that treaty, might have refused to recognise any title in the United States under the general law of nations; but after that treaty, she would be precluded by the provisions of the Nootka Sound Convention, as the United States would thence-forward represent Spain, and allege a recognised right of making settlements under that convention; but, that the original title of the United States, which was not an exclusive title by the law of nations, could become an exclusive title against Great Britain by the acquisition of the title of Spain, which was expressly not exclusive under a treaty concluded with Great Britain, independently of other considerations which were duly weighed at the conclusion of the Nootka Convention, requires only to be stated in plain language to carry with it its own refutation.
The effects of the Nootka Convention, or rather Convention of the Escurial, have already been discussed in the two preceding chapters. Mr. Buchanan, in his letter of July 12, 1845, says, “Its most important article (the third) does not even grant in affirmative terms the right to the contracting parties to trade with the Indians and to make settlements. It merely engages in negative terms, that the subjects of the contracting parties ‘shall not be disturbed or molested’ in the exercise of these treaty-privileges.” Surely there is a contradiction of ideas in the above passages. How can the right to trade with the Indians and to make settlements be termed a treaty-privilege in the latter sentence, when in the former sentence it is expressly denied to have been granted by the treaty? Mr. Buchanan, however, in asserting that the third article did not grant in affirmative terms the right specified in it, adopts precisely the same view that the British commissioners have throughout maintained; namely, that the third article did not contain a grant, but a mutual acknowledgment of certain rights in the two contracting parties, with respect to those parts of the north-western coast of America not already occupied. Mr. Buchanan, however, in a subsequent letter says, “The Nootka Convention is arbitrary and artificial in the highest degree, and is anything rather than the mere acknowledgment of simple and elementary principles consecrated by the law of nations. In all its provisions it is expressly confined to Great Britain and Spain, and acknowledges no right whatever in any third Power to interfere with the north-west coast of America. Neither in its terms, nor in its essence, does it contain any acknowledgment of previously subsisting territorial rights in Great Britain, or any other nation. It is strictly confined to future engagements, and these are of a most peculiar character. Even under the construction of its provisions maintained by Great Britain, her claim does not extend to plant colonies, which she would have had a right to do under the law of nations, had the country been unappropriated; but it is limited to a mere right of joint occupancy, not in respect to any part, but to the whole, the sovereignty remaining in abeyance. And to what kind of occupancy? Not separate and distinct colonies, but scattered settlements, intermingled with each other, over the whole surface of the territory, for the single purpose of trading with the Indians, to all of which the subjects of each Power should have free access, the right of exclusive dominion remaining suspended. Surely, it cannot be successfully contended that such a treaty is ‘an admission of certain principles of international law,’ so sacred and so perpetual as not to be annulled by war. On the contrary, from the character of its provisions, it cannot be supposed for a single moment that it was intended for any purpose but that of a mere temporary arrangement between Great Britain and Spain. The law of nations recognises no such principles, in regard to unappropriated territory, as those embraced in this treaty, and the British plenipotentiary must fail in the attempt to prove that it contains ‘an admission of certain principles of international law’ which will survive the shock of war.”
Almost all the topics in the above passage have been already discussed in the two previous chapters, as they were very dextrously urged by the commissioners of the United States in the course of the previous negotiations; so that a detailed examination of them on this occasion will not be requisite. The first article, however, does contain an acknowledgment of previously subsisting territorial rights, for it was agreed that “the buildings and tracts of land, of which the subjects of his Britannic Majesty were dispossessed, about the month of April 1789, by a Spanish officer, shall be restored to the said British subjects.” This article of the treaty, when placed side by side with the declaration on the part of his Catholic Majesty of an exclusive right of forming establishments at the port of Nootka, and with the counter-declaration on the part of his Britannic Majesty of his right to such establishments as his subjects might have formed, or should be desirous of forming in future, at the said bay of Nootka, cannot be held to contain an acknowledgment on the part of Spain of a previously subsisting territorial right in Great Britain. In respect to its provisions for the future, and to the interpretation which the commissioners of the United States have sought to affix to the word “settlement,” namely, that mere trading posts or factories were contemplated, it has been shown in the previous chapters, that, from the language of the treaty itself, in which the word “settlements” is, in three other places, employed to designate territorial possessions, and from the general language of treaties, such as the Treaty of Paris in 1763, as contrasted with the Treaty of London in 1815, such a view is quite incapable of being satisfactorily established: on the contrary, it is by implication refuted by the very stipulations in the fifth article, for free access and unmolested trade with these very settlements. Again, the character of the provisions of the convention is alleged to evince the intention of its being a mere temporary arrangement. Such, however, was not the opinion of Mr. Fox, in respect to the sixth article, when he charged the British Minister with having renounced the previous rights of Great Britain to plant colonies in the unoccupied parts of South America; nor of Mr. Stanley, in reference to the third article, when he said, “The southern fisheries will now be prosecuted in peace and security;” nor of the Duke of Montrose, when he said, “The great question of the southern fishery is finally established, on such grounds as must prevent all future dispute;” nor of Mr. Pitt, when he said, that it was evident that “no claim (of Spain’s) had been conceded,—that our right to the fisheries had been acknowledged,—and that satisfaction had been obtained for the insult offered to the Crown,” (Hansard’s Parliamentary History, vol. xxviii., p. 970;) or, as otherwise reported, “the claims of Spain had been receded from, and every thing stated in the royal message had been gained,” (Gentleman’s Magazine, vol. lxx., A. D. 1790, part ii., p. 1160.) Mr. Fox’s chief cause of complaint against the treaty was, that it was a treaty of concessions on the part of Great Britain, and not of acquisitions: and when Mr. Grey, in taunting the Minister, complained, as instanced by Mr. Buchanan, “that where we might form a settlement on one hill, the Spaniards might erect a fort upon another,” he in fact complained, not that we had not maintained a right to form territorial settlements, and to exercise acts of sovereignty in them, but that we had not asserted this right so as to exclude the Spaniards entirely from the country. Reference has been made to these debates in the British Houses of Parliament, rather to illustrate than to prove the fact of the treaty having been regarded in a very different light from a mere temporary engagement, by those who contended that Great Britain had conceded more advantages than she had acquired. Mr. Pitt, indeed, denied Mr. Fox’s positions, and in answer to them maintained, “that though what this country had gained consisted not of new rights, it certainly did of new advantages. We had before a right to the Southern Whale Fishery, and a right to navigate and carry on fisheries in the Pacific Ocean, and to trade on the coasts of any part of it north-west of America: but that right not only had not been acknowledged, but disputed and resisted: whereas, by the convention, it was secured to us—a circumstance, which, though no new right, was a new advantage.” That the condition of intermixed settlements, in regard to unappropriated lands, is clearly recognised by the law of nations, as consistent with the full and absolute independence of two separate nations, has been already shown by reference to acknowledged authorities on international law, so that Mr. Buchanan’s entire argument appears to have been advanced rather upon specious than solid grounds.
There are several other arguments in the correspondence of the Commissioners of the United States that might deserve attention, were it not that the discussion would exceed the contemplated limits of this work, which has probably already attained too large a bulk. It has, however, been found impossible to compress the inquiry within narrower bounds, without incurring the double risk, on the one hand, of appearing to those who are imperfectly informed on the subject, not to have given sufficient consideration to the arguments of the Commissioners of the United States,—and, on the other hand, of causing to those who are well acquainted with the facts, some dissatisfaction by too cursory an exposure of the unsoundness of those arguments. Besides, the course adopted has been thought to be well warranted by the importance of the question, and to be at the same time more consistent with the respect due to the distinguished negotiators.