But can such charters be considered an acknowledged part of the law of nations? Were they any thing more, in fact, than a cession to the grantee or grantees of whatever rights the grantor might suppose himself to possess, to the exclusion of other subjects of the same sovereign?—charters binding and restraining those only who were within the jurisdiction of the grantor, and of no force or validity against the subjects of other states, until recognized by treaty, and thereby becoming a part of international law.
Had the United States, thought proper to issue, in 1790, by virtue of their national authority, a charter granting to Mr. Gray the whole extent of the country watered, directly or indirectly, by the River Columbia,[84] such a charter, would, no doubt, have been valid in Mr. Gray's favor, as against all other citizens of the United States. But can it be supposed that it would have been acquiesced in by either of the powers, Great Britain and Spain, which, in that same year, were preparing to contest by arms the possession of the very country which would have been the subject of such a grant?
If the right of sovereignty over the territory in question accrues to the United States by Mr. Gray's discovery, how happens it that they never protested against the violence done to that right by the two powers, who, by the convention of 1790, regulated their respective rights in and over a district so belonging, as it is now asserted, to the United States?
This claim of the United States to the territory drained by the Columbia and its tributary streams, on the ground of one of their citizens having been the first to discover the entrance of that river, has been here so far entered into, not because it is considered to be necessarily entitled to notice, since the whole country watered by the Columbia falls within the provisions of the convention of 1790, but because the doctrine above alluded to has been put forward so broadly, and with such confidence, by the United States, that Great Britain considered it equally due to herself and to other powers to enter her protest against it.
The United States further pretend that their claim to the country in question is strengthened and confirmed by the discovery of the sources of the Columbia, and by the exploration of its course to the sea by Lewis and Clark, in 1805-6.
In reply to this allegation, Great Britain affirms, and can distinctly prove, that, if not before, at least in the same and subsequent years, her North-Western Trading Company had, by means of their agent, Mr. Thomson, already established their posts among the Flathead and Kootanie tribes, on the headwaters of the northern or main branch of the Columbia, and were gradually extending them down the principal stream of that river; thus giving to Great Britain, in this particular, again, as in the discovery of the mouth of the river, a title to parity at least, if not priority, of discovery, as opposed to the United States. It was from those posts, that, having heard of the American establishment forming in 1811, at the mouth of the river, Mr. Thomson hastened thither, descending the river, to ascertain the nature of that establishment.[85]
Some stress having been laid by the United States on the restitution to them of Fort George by the British, after the termination of the last war, which restitution they represent as conveying a virtual acknowledgment by Great Britain of the title of the United States to the country in which that post was situated—it is desirable to state, somewhat in detail, the circumstances attending that restitution.
In the year 1815, a demand for the restoration of Fort George was first made to Great Britain, by the American government, on the plea that the first article of the treaty of Ghent stipulated the restitution to the United States of all posts and places whatsoever taken from them by the British during the war, in which description, Fort George, (Astoria,) was included.
For some time the British government demurred to comply with the demand of the United States, because they entertained doubts how far it could be sustained by the construction of the treaty.
In the first place, the trading post called Fort Astoria (or Fort George,) was not a national possession; in the second place, it was not a military post; and, thirdly, it was never captured from the Americans by the British.