What those claims were on the part of the United States at the time of the Convention of 1818, was explicitly stated by Messrs. Gallatin and Rush, the Commissioners of the United States, before it was concluded. In their letter to Mr. Adams, of October 20, 1818, which commences with these words, “We have the honour to transmit a convention, which we concluded this day with the British plenipotentiaries,” they state in reference to the negotiations, “We did not assert that the United States had a perfect right to that country, (i. e., the country westward of the Stony Mountains,) but insisted that their claim was at least good against Britain.” In other words, the plenipotentiaries on the part of the United States, at the first opening of the negotiations respecting the definitive adjustment of the mutual claims of the two parties westward of the Rocky Mountains, which has been a subject of subsequent negotiation on three separate occasions, limited their claims expressly to an imperfect right,—a right in common with Great Britain. They had already, in assenting to be placed in possession of Astoria “whilst treating of the title,” according to Lord Castlereagh’s agreement, as recorded by Mr. Rush, admitted the common right of Great Britain to possess settlements in that country. The United States had contended that Astoria had become a British possession jure belli, and Great Britain had covenanted by the first article of the Treaty of Ghent to restore all her acquisitions made jure belli. Great Britain, on the contrary, had maintained that Astoria had passed into the hands of the North-west Company by peaceable transfer. In agreeing then to treat of the title, the two parties agreed to discuss these two facts, the former implying the common right of the United States to make settlements, the latter, the common right of Great Britain. It was idle to enter into an inquiry into the respective truth of the alleged facts, unless it followed that the title of the party that could substantiate its statement would thereby be at once established. This however, implied a possibility on either side of a rightful title, on the side of the United States by the Treaty of Ghent, on the side of Great Britain by the Law of Nations. The United States relied upon the status ante bellum, the lawfulness of which, in this particular case, was admitted by Great Britain’s consenting to entertain such a title; Great Britain rested on the received principles of international law, according to which her subjects, in common with those of other states, were entitled to make peaceable acquisitions in such parts of the north-west coast as were not yet occupied by any other civilised nation, which the United States could not gainsay. After the consent of both sides to treat of the title upon this footing, it is out of the question to suppose that it is competent for either party on the renewal of negotiations to set up an exclusive title: such a proceeding would be essentially aggressive in its character, and would be altogether inconsistent with the tacit admission on both sides, when they agreed to entertain the consideration of each other’s title.
Let us now proceed to examine what has been the conduct of the two parties throughout the course of the various negotiations.
It having been expressly stated in 1818, by Messrs. Rush and Gallatin, that the United States did not assert a perfect right to the country, Mr. Rush, in his letter to Mr. Adams, proceeds to state, that “when the plenipotentiaries of the United States, on their part, stated, ‘that there was no reason why, if the two countries extended their claims westward, the boundary limit of the 49th parallel of north latitude should not be continued to the Pacific Ocean,” the British commissioners, though they made no formal proposition for a boundary, intimated that the river itself was the most convenient that could be adopted, and that they would not agree to any that did not give them the harbour of the mouth of the river, in common with the United States.
The history of the subsequent negotiations will show that on each occasion the United States have increased their claims and reduced their concessions, while Great Britain has not only not increased her claims, but on the contrary has advanced in her concessions.
Thus, in 1824, Mr. Rush commenced the negotiation by claiming for the United States, “in their own right, and as their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains, from the 42d to at least as far up as the 51st degree of north latitude.” He further said, that “in the opinion of my government, the title of the United States to the whole of that coast, from latitude 42° to as far north as 60°, was superior to that of Britain or any other Power: first, through the proper claim of the United States by discovery and settlement; and secondly, as now standing in the place of Spain, and holding in their hands her title.”
In accordance with these views, Mr. Rush annexed to the Protocol of the 12th Conference a formal proposal, that Great Britain should stipulate that her subjects should make no settlement on the north-west coast of America, or the islands adjoining, south of the 51st degree of latitude; the United States stipulating, that none should be made by her citizens north of the 51st degree. The British negotiators in reply proposed to accede to a line along the 49th parallel of north latitude as far as the north-easternmost branch of the Columbia, and thence down the middle of that river to the sea, the navigation of the river to be for ever free to both parties. The commissioner of the United States, on the other hand, would only vary his proposed line to the south, so as to consent that it should be the 49th instead of the 51st degree of north latitude, which was the original proposal in 1818, with the navigation of the river free to both parties.
On the negotiations being resumed in 1826, Mr. Gallatin, on the part of the United States, having set up a new ground of title founded on the acquisition of Louisiana from France in 1803, and its contiguity through the intervening chain of the Rocky Mountains to the territory under discussion, limited his offer to the 49th parallel with the navigation of the river free to both parties, as before, whilst the British commissioners expressed their willingness to yield to the United States, in addition to what they first offered, a detached territory extending, on the Pacific and the Strait of Fuca, from Bullfinch’s Harbour to Hood’s Canal, and to stipulate that no works should at any time be erected at the mouth or on the banks of the Columbia, calculated to impede the free navigation of that river by either party.
This last stipulation was evidently adapted to obviate a difficulty which Mr. Prevost, the agent of the United States at the restoration of Astoria, had suggested to the United States Government as early as Nov. 11, 1818, in his report upon the Columbia River:—“In addition to this, it is susceptible of entire defence, because a ship, after passing the bar, in order to avoid the breaking of the sea on one of the banks, is obliged to bear up directly for the knoll forming the cape, at all times, to approach within a short distance of its base, and most frequently there to anchor. Thus a small battery erected on this point, in conjunction with the surges on the opposite side, would so endanger the approach as to deter an enemy, however hardy, from the attempt.” (British and Foreign State Papers, 1821-22, p. 467.)
In the negotiations of 1844-5, lately brought to a close, Mr. Pakenham, the British plenipotentiary at a very early period, proposed in a letter of Aug. 26, 1844, in addition to what had been already offered on the part of the United States, and in proof of the earnest desire of her Britannic Majesty’s Government to arrive at an arrangement suitable to the interests and wishes of both parties, to undertake to make free to the United States any port or ports which the United States Government might desire either on the main-land, or on Vancouver’s Island, south of 49°; and on Mr. Calhoun’s declining to make any counter-proposal, based on the supposition of the United States and Great Britain being occupants in common, Mr. Pakenham suggested “an arbitration, to the result of which both parties should be bound to conform by the interchange of notes, as the most fair and honourable mode of settling the question,” which Mr. Calhoun declined. Mr. Buchanan, on resuming the negotiations after the election of Mr. Polk to the Presidency of the United States, concluded his communication of July 12, 1845, to Mr. Pakenham, by stating that the President would not have consented to yield any portion of the Oregon territory had he not found himself embarrassed, if not committed, by the acts of his predecessors, and that he was instructed to propose the 49th parallel as before to the Pacific Ocean, offering at the same time to make free any port or ports on Vancouver’s Island south of this parallel, which the British Government may desire.
“This proposal,” as justly observed by Mr. Pakenham, in his reply of July 29, 1835, “was less than that tendered by the American plenipotentiaries in the negotiation of 1826, and declined by the British Government. On that occasion it was proposed that the navigation of the Columbia should be made free to both parties.”