The Oregon Territory, Its History and Discovery

by Travers Twiss

CHAPTER XVIII.

REVIEW OF THE GENERAL QUESTION.

Presumption in Favour of the Common Right of Great Britain.—No exclusive Rights in Spain or the United States.—Convention of 1818.—Convention of 1827.—Mr. Rush’s Admission in 1824, that the United States had not a perfect Right.—Cession of Astoria.—Course of the Negotiations.—Messrs. Rush and Gallatin in 1818.—Mr. Rush in 1824.—Mr. Gallatin in 1826.—Negotiations of 1844-5.—Mr. Buchanan’s Offer.—Mr. President Polk’s Message to Congress.—Consequences involved in the two Proposals.—Valueless character of the Country north of 49°.—Consequences of the Convention of 1827 being abrogated.—Present condition of the Northern and Southern Banks of the Oregon.—Voyages of British Subjects:—Drake,—Cook,—Vancouver.—Settlements of Great Britain.—Settlements of the United States.—Rule of Partition advanced by the United States in their Negotiations with Spain.—Its Application to the present Question.—Objections to it.—Mr. Pakenham’s Letter of Sept. 12, 1844.—Suggestion as to a further Proposal on the Part of Great Britain.—Mr. Webster’s Anticipations of the future Destinies of Oregon.—Mr. Calhoun’s Declaration in 1843.

The failure on the part of the United States to make out their exclusive claim establishes at once a conclusive inference in favour of the common title of Great Britain. The proof required in the two cases is essentially distinct. Where two nations are already settled in a country, the onus probandi rests with the party that seeks to exclude the other. Independent of the presumption from inference, Great Britain has conclusive primâ facie evidence of a right to form settlements in the country; first, in the recognition of this right by a Power which had asserted an exclusive title to the entire country under the guarantee of the Treaty of Utrecht, to which all the great colonial Powers in America were parties, but which ultimately abandoned it by the signature of the Convention of the Escurial: secondly, in the undisturbed enjoyment of this right during a period which, according to the Civil Law, to which all civilised nations agree in appealing for the arbitration of public differences between one nation and another, from the necessity of some common standard, constitutes a valid prescription, such as was recognised in the case of Russia by the United States in 1824, and by Great Britain in 1825; thirdly, in the partition having been the subject of repeated negotiations, and more especially from the proposals to negotiate both in 1824 and 1826 having originated with the United States, which thereby admitted the claims of Great Britain to be similar in kind with their own, though they might maintain them to be different in degree.

It seems to have been contended by the commissioners of the United States in the course of the last negotiation, that “whilst the proper title of the United States gave them exclusive rights against all mankind, the superaddition of the Spanish title extended their exclusive right as against Great Britain,” (Letter of Mr. Buchanan, July 12, 1845.) The enjoyment, however, of the territory by Great Britain was antecedent to the proper title of the United States, whereas the possession of the United States can be accounted for consistently with the continuance of the common right of Great Britain, which she claims by virtue of a title antecedent to such possession. But if the superadded Spanish title conferred an extension of exclusive rights on the United States, it must have been proprio vigore an exclusive title; and if so, valid against the United States themselves: so that, on that supposition, the proper right of the United States could not be an exclusive right. There cannot be two exclusive titles in different nations to the same country, and Great Britain would be expressly debarred by the provisions of the Convention of the Escurial from recognising an exclusive title in the United States, antecedent to their acquisition of the Spanish title by the Treaty of Florida, because she had recognised in 1790 the right of Spain, in common with herself, to settle in any places of the north-west coast of America not as yet occupied: whilst she could not recognise the rights which devolved to the United States from Spain, in 1819, as exclusive rights, in the face of her previous admission that the United States were entitled to be considered as the party in possession of Astoria whilst treating of the title, and in contravention to the third article of the Convention of 1818, which was grounded upon the basis of both the United States and Great Britain, as well as other Powers, having at that time claims to the country. In fact, Great Britain had acknowledged the common title of Spain before the time when the United States assert their own exclusive title to have commenced; and she had acknowledged the common title of the United States, pending the continuance of the recognised title of Spain: so that she is precluded from recognising the title of either state to be an exclusive one, if she were even disposed to do so, by her own previous acts.

On the other hand, the United States themselves are precluded by their own previous acts from setting up either their own original title, or their derivative title from Spain, as an exclusive title.

By the convention, signed at London, of October 20, 1818, it was agreed in the third article, “that any country that may be claimed by either party on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all the rivers within the same, be free and open for the term of ten years from the date of the present convention, to the vessels, citizens, and subjects of the two Powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other Power or state to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences among themselves.”

This article, in its very terms, implies the renunciation by both parties of an exclusive right to the entire territory, not merely in reference to each other, but still further in reference to other Powers.

By the convention, signed at London, of August 6, 1827, all the provisions of the third article of the Convention of 1818 were indefinitely extended, subject to abrogation, at the option of either party, upon twelve months’ notice; and by the third article it was stipulated, that “nothing contained in this convention, or in the third article of the convention of the 20th October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect, the claims which either party may have to any part of the country westward of the Stony or Rocky Mountains.”