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real merits of this question of the Oregon, we shall endeavor to condense into as small a space as possible the grounds, both of fact and of public law, on which our rights are founded. In doing this, we shall strive to omit nothing material to the inquiry.
What are the rules of public law by which the question of right, in this case, is to be judged? They are these:
1. That in respect to newly discovered countries, the first discoverer has the prior right to occupy, provided he does so within a reasonable time. What is a reasonable time depends upon the nature of the country, the uses to which it may be applied, and the wants of mankind in respect to it. If, for example, it were a rich West India island, the first discoverer could not rightfully prevent other nations from occupying and cultivating it, if he did not see fit soon to do so himself. If, on the other hand, it were a remote, barren island, there would be no necessity of immediate occupation.
2. That, if the first discoverer does not occupy within this reasonable time, he is deemed to have abandoned his right, and the next discoverer stands as if he had been the first, and so on through any number of discoverers.
3. That the discovery of a river is deemed the discovery of its course and branches, and of the country drained by it.
4. That all treaties and engagements between governments, of an executory nature, are annulled by a subsequent war. With these rules before us, let us examine the questions of fact. The first settlements in the New World were all made on its eastern shores. The Pacific Ocean was discovered by Balboa at Panama in 1513. No person, however, ventured to the northwest coast as far as Oregon till 1543, when Ferrelo, a pilot in the service of Spain, penetrated to the latitude of fortythree. Thirty-six years afterward, Drake made his famous voyage round the world, and it is maintained by the English Government that he sailed as high on this coast as forty-eight; but, while one account of his voyage has it forty-eight, the other has it forty-three, and there is good reason to think that this last account is the true one. The discrepancy in the two accounts destroys their value as evidence, and no reasonable person would think of resting any title upon them. Drake
did not land on any part of this coast, and from that period for about two hundred years no Englishman visited it. The Spaniards, however, visited it several times, once more, at least, during the sixteenth century, twice in the seventeenth, and three times in the eighteenth, before the time of Cook's voyage. In 1778 that great navigator sailed along the coast, particularly examining the upper parts near the forty-seventh and fortyeighth parallels, and stopping at Nootka Sound. Afterward the coast was frequently visited by the vessels of the different maritime nations. The river remained undiscovered. Vancouver passed along the shore in 1792, examined it, and concluded that there was no river. Captain Gray, an American, in the American ship Columbia, however, discovered it on the 11th of May, 1792, and sailed into it a considerable distance. Its existence had been previously suspected, as we have already mentioned; and Heceta, a Spanish navigator, had, in 1775, run along the shore, and on the 15th of August, at six in the evening, arrived opposite a bay in the latitude of 46° 17', "where the currents and eddies were so strong that, notwithstanding a press of sail, it was difficult to get clear out of the northern. cape, toward which the current ran, though its direction was eastward in consequence of the tide being at flood." These eddies and currents caused him "to believe that the place is the mouth of some great river, or of some passage to another sea. . . . Notwithstanding the great difference between the position of this bay and that mentioned by De Fuca," he "had little difficulty in concluding they might be the same." He found it difficult on the following morning to enter, and continued his voyage toward the south. This does not appear to us to be a discovery of the river, or what was equivalent to it.
The other remarkable places on the coast are the Strait of Fuca and Nootka Sound. The former was discovered by De Fuca, a Greek pilot, in the service of Spain, in 1592; the latter by Perez, also in the Spanish service, in 1774.
The first visits to this country, overland, were made, one by McKenzie, in the English service, from Canada, crossing the Rocky Mountains to the north of the head-waters of the Columbia, in 1793, and passing to the sea in the parallel of fifty-two and a half; the other by Lewis and Clarke, in the American
service, who traversed the greater part of the Oregon region in 1805, and explored the river from its source to its mouth. So far, then, as the right of discovery is concerned, it should seem very clear that the Spanish Government had the title to the coasts and the country about Fuca's Straits, and that the American Government had the same title to the interior washed by the river Oregon and its tributaries.
As to occupancy. After the American war a considerable trade in fur sprang up on the northwest coast, vessels going there to take in cargoes for the China market. This trade provoked the jealousy of the Spanish Government, which all the while claimed the dominion of the coast, so that, in 1788, the Viceroy of Mexico sent two vessels, the Princesa and the San Carlos, to inquire particularly respecting the Russian establishment at Prince William's Sound, and then to explore the coasts southward to California, looking for places convenient for the reception of Spanish colonies. The commanders on their return reported that the Russians had eight settlements on the coast, containing altogether two hundred and fifty-two Russian subjects, all west of Prince William's Sound, and that they were informed that two vessels had been sent that summer from Kodiak to form an establishment at Nootka Sound. The Viceroy thereupon dispatched vessels early in 1789, with orders, in case any Russian or British vessel should appear at Nootka, to receive her civilly, but to declare the paramount rights of the crown of Spain. Up to this period, May, 1789, no settlement or establishment whatever had been attempted, for the alleged settlement of Meares at Nootka must be regarded as a mere pretense, and no civilized nation had exercised any jurisdiction in any part of the west coasts of the New World between San Francisco and Prince William's Sound.
Arriving at Nootka, the Spanish commanders landed materials and built a fort; and afterward seized two British vessels which were engaged in the trade of the coasts. For this proceeding the British Government demanded reparation; a warm dispute arose between the two governments, that had wellnigh ended in war; but, finally, under the mediation of France it was brought to a close, by a convention, commonly called the Nootka Treaty, or the Convention of the Escurial, which, as
it is important in this controversy, we shall give entire in the course of this article.
The Spaniards also formed another settlement on the south side of the Strait of Fuca; and they continued at Nootka, with some intermissions, until about 1795, when they left it, for no other reason, so far as is known, than that it was useless and expensive. Since then they have had no settlements north of San Francisco.
The first settlement of any kind made by British subjects west of the Rocky Mountains was in 1806, by Simon Fraser, who formed a trading establishment at a small lake, in the fifty-fourth parallel of latitude. Neither he nor any other British subject saw any of the waters of the Oregon until five years afterward, and after Astoria had been founded in the Oregon country itself by American citizens. Before 1810, Mr. Henry, an agent of the Missouri Fur Company, had established a trading-post on a branch of the Lewis River, one of the tributaries of the Oregon. The hostility of the Indians and the want of provisions led to its abandonment, however, in that year. In the same year, Captain Smith, of the ship Albatross, of Boston, attempted a settlement on the Oregon, about forty miles from its mouth. He built a house and planted a garden; but, the site not being good, he left it before the close of the year. Meantime Mr. Astor's expedition had been fitted out, and in March, 1811, Astoria was founded at the mouth of the Oregon. During the war it was captured by the British, but was restored in October, 1818, in pursuance of the stipulations of the treaty of peace.
From that time to the present, the two governments, with few intermissions, have been engaged in negotiations about the title to the country; and it was agreed between them, first in 1818 and afterward in 1827, that it might be temporarily occupied by the people of both nations, without, however, impairing in any way the title of either; * so that none of the discoveries
*The conventions between the two countries are as follows:
CONVENTION OF OCTOBER 20, 1818.
"ARTICLE III. It is agreed that any country that may be claimed by either party on the northwest coast of America, westward of the Stony Mountains, shall, together with its harbors, bays, and creeks, and the navigation of all rivers within
or settlements of either America or England since that time can in any manner affect the title.
So far, then, as occupancy is concerned, it appears scarcely disputable that the first settlements were by Spain, the second by America, and the last by England, and that the rights derived from occupancy are held in the same order.
The rights we have been hitherto considering are those which are derived from discoveries and settlements, on the Pacific coasts or overland, from the eastern side of the mountains. But there are certain other rights which must not be overlooked-the rights derived from discoveries and settlements on the Atlantic coasts.
On the first colonization of the New World, the discovery and settlement of the Atlantic border were claimed to give a title across the continent. The enlarged charter to the first colony of Virginia, for example, granted the country extending along the seacoast four hundred miles, and into the land throughout from sea to sea.
the same, be free and open, for the term of ten years from the date of the signature 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 high 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."
CONVENTION OF AUGUST 6, 1827.
"ARTICLE I. All the provisions of the third article of the Convention concluded between the United States of America and his Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are hereby, further indefinitely extended and continued in force, in the same manner as if all the provisions of the said article were herein specifically recited.
"ART. II. It shall be competent, however, to either of the contracting parties, in case either should think fit, at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this Convention; and it shall, in such case, be accordingly entirely annulled and abrogated, after the expiration of the said term of notice.
"ART. III. Nothing contained in this Convention or in the third article of the Convention of the 20th of October, 1818, hereby continued in force, shall be construed to impair, or in any manner affect, the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains."