few weeks, lost the whole of his tribe and such treaties give them no right either against kindred, as I saw him quietly enter the their own government or against any other. apartment, wrapped in his blanket, and take We now proceed to consider the different his seat at the lonely side-table. He scarce sources of title separately, beginning with seemed to attract the notice of any one, but title by Discovery. What amount of exploate his meal in silence, and retired. He has ration is necessary for title by discovery, has Salways been a great friend to the whites, not been decided. As far as we can perceive, and during the time of his prosperity was a very little, perhaps the mere distant glimpse ever ready to search out, and bring to punish- of a headland, has been considered sufficient. ment, all those who committed depredations And it is admitted that when once a title by on strangers. Casenove's tribe is not the discovery, however imperfect, has been gained only one that has suffered in this way; many by the agents of one nation, it is not superothers have been swept off entirely, without seded by a subsequent though more accurate (leaving a single survivor."* examination by those of another. The reason It seems probable that in a few years all is obvious; for if title by discovery depended) that formerly gave life to the country, both on the comparative accuracy of the examina the hunter and his prey, will become ex-tion, no such title could be safe. It would Stinct; and that their place will be supplied always be liable to be divested by a new by a thin white and half-breed population, survey, which was, or professed to be, more scattered along the few fertile valleys, sup- elaborate.

ported by pasture instead of by the chase; The title by mere discovery, however, is and gradually degenerating into the barbar-not a permanent one. It requires to be per(ism, far more offensive than that of the fected by settlement. "The title," says Vattel. savage, which degrades the backwoodsman. " of navigators going on voyages of discovery. Having given this short view of the Oregon and furnished with a commission from their Scountry, we proceed to examine the grounds sovereign, has generally been respected, proon which the very doubtful advantage of its vided it has been soon after followed by real sovereignty is claimed. possession. But the law of nations will not

It will appear that the facts on each side acknowledge the sovereignty of a nation over are tolerably clear; the difficulty, therefore, if countries, except those in which it has formed there be any, must arise from the obscurity of settlements, and of which it makes actual the law; and we will begin, therefore, by a use."*

brief statement of what we believe to be No nations have asserted this more strongly (international laws with respect to the acqui- than England and the United States. "She Ssition of sovereignty over an unoccupied ter- understood not," said Elizabeth to Mendoza, Sritory. the Spanish ambassador, "why her subjects Generally, it may be said, that such sovor those of any other prince should be deereignty may be acquired by five means. barred from the Indies, to which she could? By Discovery, by Settlement, by Contiguity, not persuade herself that the Spaniards had by Treaty, and by Prescription. There is any just title by the Bishop of Rome's donaone requisite, however, which, as it is essen- tion; or because they had touched here and tial to every source of title, ought to be men- there on the coast, built cottages, and given tioned before we treat them separately-names to a river and cape, things which can(namely, that the acts by which sovereignty not entitle them to a propriety.. This imagiSis acquired, must be the acts of a govern-nary propriety could not hinder other princes) Sment, not of unauthorized individuals. The from transporting colonies into those parts) Sacquisition of sovereignty is a grave act. It thereof where the Spaniards inhabit not, for imposes on the acquiring State the duties of asmuch as prescription without possession is administration and protection. It imposes on little worth."t

all other States the duties of abstaining from "Prior discovery," said Mr. Gallatin, in interference. It takes from the common pat- the American counter-statement during the rimony of mankind a part which was previ-negotiations of 1826, "gives a right to occupy, Sously open to the enterprise and industry of provided that occupancy takes place within a Sall nations, and appropriates it to one. It reasonable time, and is followed by perma Sis obvious that great inconveniences would nent settlements and by the cultivation of Sarise if private persons could arbitrarily, im- the soil."

Spose such duties on their own sovereigns and The same rules of convenience which de-) Son independent States. No title, therefore, is cide that a title by discovery may be lost given by the discoveries made by private unless perfected by settlement, decide that a adventurers. If they make settlements, such title by settlement may be lost if that settlesettlements form no portion of the territory of the State from which the unauthorized settlers *Book L. chap. xviii. have proceeded. If they enter into treaties, *Vol. iv. p. 369.

20th Congress 5th Session-Document 199 † Campden's Elizabeth, year 1580. pp. 63-69.

ment be abandoned. Otherwise one nation, fect title by discovery, the imperfect title by without herself using a territory, would ex-contiguity gives no permanent exclusivel Sclude all others by settling, and afterwards claim. Any nation has a right to say to us Squitting it.

We now come to the third source of title Contiguity. It may be divided into a perfect and an imperfect right.

Either colonize yourselves, or let us do it. But do not exclude others from territory which you do not use yourselves, and which we can use without injuring you.

A perfect right by contiguity, is the right A title by Treaty is of course a perfect which a nation enjoys to exclude all others title from the beginning as between the parfrom a territory, the command of which, ties to the treaty; but, as respects all others, though it be not actually within her occupa- it is mere evidence of claim. Thus the treaty tion, is essential to the convenience or to the by which Russia has acknowledged that the (security of her real possessions. If no such British Northern boundary begins at latitude right were recognized-if, when one nation 54° 40, is not binding on the United States. Shas made a settlement, every other had a The treaty by which the United States and right to form one in its immediate vicinity-Spain have fixed the 42d parallel as the it is obvious that no continuous colonial estab- Northern boundary of Mexico, is not binding lishments could be created. But the extent on England. It is to be observed also, that of this right has never been decided. One as between civilized nations, no title derived) of the latest instances of its exercise, is the by treaty from a barbarous people is ac(refusal by England to allow any other nation knowledged. Savage tribes are held to have to colonize the Chatham Islands. We discov-a mere right of occupancy, to last only until (ered those islands in 1774; but as we have the land is required by civilized men; and (never attempted to occupy them, our right by incapable of transfer, except to the governdiscovery has, according to our own doctrine, ment which, by some of the means recoglong since expired. But we maintain that nized by international law, has acquired the Stheir occupation by any other nation would real sovereignty over what the savage erro be dangerous, or at least injurious, to our neously supposes to be his own territory. It settlements in New-Zealand, though at the is generally thought advisable to go through distance of many hundred miles. And on the forms of a purchase and a cession; but it that ground we maintain the right, though is universally admitted that the title of a not occupying them ourselves, to prevent civilized nation as against other civilized (their occupation by others. nations, is not strengthened by these forms, or

Had

The other, the imperfect title by contiguity, weakened by their absence. is a mere preferable right to acquire by set- Prescription, the last of the five sources of Stlement a complete title to lands not actually title, is seldom found alone. The only case Ssettled, and not essential either to the safety in which it can exist by itself, is one in which or to the convenience of existing settlement, the rest of the world has for a long series of but geographically connected with them. years allowed a single nation to exclude all This title is even less defined than the for-others from a territory to which she has no mer-still it must exist; for, if it do not exist, perfect title by occupation, contiguity, or the title by discovery can give a right merely treaty. Of such a claim the United States to the line of coast actually seen by the navi- endeavored to lay the foundation, by President) gator. This was the title set up by Spain-Monroe's declaration of the 2d December, but, to the extent to which she asserted it, 1823-that the American continent was no (denied by England-to the whole western longer to be considered as a subject of colcoast of America. This is the ground of our onization by any European power. Sclaim to the unoccupied portion of New-Europe acquiesced in this declaration, instead Holland. That claim does not rest on dis of protesting against it, it would in time have covery, or on settlement, or on treaty, or on given to the United States a prescriptive prescription. It must then depend on conti- right to act upon it. So if England were guity. But it cannot be said that our existing now to make a similar declaration respecting settlements would be injured by the formation New-Holland, and it were followed by no (of others at one thousand miles distance. The opposition of remonstrance, England would in (contiguity, therefore, on which our claim time acquire a prescriptive right to enforce it (rests, is mere geographical connexion, and Having explained, as fully as our limits, we apprehend, therefore, that it is a mere and the incompleteness of the authorities, Spreferable right--that it gives us merely a will allow, the Law of Nations on this ob right of first choice-a right, for instance, to scure subject, we proceed to examine what Srequire that no nation shall colonize the coast countenance that law gives to the claims of of New-Holland without_announcing to us England and of the United States on Oregon. her intention, and ascertaining that her pro- We will begin with the title by Discovery. jects are not a bona fide interference with It has been supposed that Drake may any of ours. But by analogy to the imper-have caught a glimpse of the coast in latitade

48° in the year 1580. He certainly saw it up mouth; but mistaking, as all previous navito latitude 43°. Of the two accounts of his gators except Heceta had done, its bar for a voyage, one carries him up to latitude 48°-continuous coast, he inferred that no such river the other stops him at 43°. But as England existed. He therefore named the Northern never attempted to make any use of this headland Cape Disappointment, aname which supposed discovery, she has very properly it still bears.

avoided insisting on it. For nearly two cen- In 1787, and the five following years, Captaries the North-western coast remained un-tain Gray passed and repassed along the visited; but, in 1774 and 1775, Bucareli, the coast, generally wintering in Nootka Sound. Viceroy of Mexico, who appears to have On the 11th of June, 1792, being in search of (been a man of viger unusual in a Spaniard, a harbor to do some repairs, he ran into the sent two expeditions to explore it. We copy Entrada de Heceta, saw an opening in the Sfrom Humboldt, who had access to manuscript bar, crossed it. and found himself in the river documents, the following statement of their St. Roque. He sailed up for fifteen miles, proceedings:took in water, and completed his repairs "Perez and his pilot, Estevan Martinez, left the the bar into the Pacific. He changed the and then with much difficulty got back over port of San Blas on the 24th January, 1774. On the 9th of August they anchored, the first of all name of this river from that of St. Roque to European navigators, in Nootka Road, which they that which it still bears, the Columbia. called the port of San Lorenzo, and which the In 1791, Captain Vancouver was despatched illustrious Cook, four years afterwards, called King by the British Government to the NorthGeorge's Sound. In the following year a second western coast, partly for purposes which we expedition set out from San Blas, under the com- shall mention hereafter, and partly for dismand of Heceta, Ayala, and Quadra. Heceta dis- covery. He reached that coast at about latithe Entrada de Heceta, the Pic of San Jacinto. tude 400, and thence, up to the Northern (Mount Edgecumbe,) near Norfolk Bay, and the shores of the Pacific, made a survey far more fine port of Bucareli. I possess two very curious accurate than any that had previously been small maps, engraved in 1788 in the city of Mex-effected. But, as usual, he mistook the bar of ico, which give the bearings of the coast from the the Columbia for a continuous coast, and was 27° to the 58° of latitude, as they were discovered undeceived only by meeting Captain Gray. in the expedition of Quadra."* Still he supposed that it must be impassable, Mr. Greenhow states, that in the charts as in truth it generally is, by vessels of burpublished in Mexico after Heceta's return, den. Instead, therefore, of exploring it with the Columbia is named the Rio de San his own ship, the Discovery, he dispatched Roque. In 1778, Captain Cook, on his last Lieutenant Broughton in a smaller vessel, voyage, partially examined the coast from the Chatham. Broughton crossed the bar the 44th parallel to the 59th, and accurately but, finding the chaunel intricate and danthence to within the Arctic circle. When his gerous. left his ship, and rowed up in his ships were returning after his death, they cutter about one hundred miles,—that is, visited Canton, and sold very advantageously nearly to the point at which the rapids render some furs which they had collected from the farther progress, under ordinary circumstansavages. This traffic produced important re-ces, impossible.

covered the mouth of the Rio Columbia, called it

sults. A mine of wealth was supposed to The progress of overland discovery was have been discovered in the fur-trade between much slower. The first who penetrated the the North-west of America and China, and Rocky Mountains was Sir Alexander Macthe English and Americans prepared to work kenzie, then in the service of the North-west it; but as the South Sea Company had then Company. In the year 1793 he crossed them exclusive privileges in the Southern Pacific, in about latitude 540-discovered Fraser's and the East India Company in China, the River, descended it for about two hundred English_adventurers generally sailed under and fifty miles, then struck off in a westerly foreign flags. The most remarkable of these direction, and reached the Pacific in latitude traders were Captain Gray, the commander of 520 20. In August, 1805, Lewis and Clarke, the American merchant vessel the Columbia, despatched for that purpose by the Govern and Lieutenant Meares, a British officer who ment of the United States, reached the Rocky acted as the virtual commander of a mercan-Mountains in about latitude 440-crossed tile expedition using the Portuguese flag. them, discovered the Southern head-waters of Meares left Macao for Nootka Sound in the the Columbia, floated down its stream for about beginning of 1788-erected a hut and a kind six hundred miles, and on the 15th of Noof building-yard there, built a vessel, and vember reached its mouth. Here they built traded along the coast. He searched for the some huts-remained in them during the winriver St. Roque, and actually entered its ter, and in 1806 returned to the United States, exploring in their course many of the tribu Humboldt's New Spain. Black's translation. taries of the Columbia. This is the only Joccasion on which the Rocky Mountains have

Vol. ii, p. 316 to 318.

been crossed by persons acting in a public seded by subsequent and more accurate ones, capacity. the title by discovery to the whole coast of In 1806, Mr. Fraser, also under the orders of Oregon belongs to Vancouver; for he was the North-west Company, crossed the Rocky the first who accurately examined it. Lewis) Mountains, and established a trading post on and Clarke were, indeed, public officers; but (Fraser's River. about latitude 540; and in their discovery of the Southern sources of 1811, Mr. Thompson, also an agent of that the Columbia, could give no title to the terriCompany, discovered the Northern head-tory watered by a river of which the lower waters of the Columbia about latitude 52°, portion was already well known, and the and erected some huts on its banks. This is Northern sources were discovered by others. the whole amount of the title by discovery. The English claim by discovery is equally On these grounds, that title has been unfounded. Her overland discoverers were claimed by the United States, by England, not public officers; and of her maritime dis and by Spain. coverers, it is doubtful whether Drake ever

The claim to that title, on the part of the ascended beyond the 43d parallel; and Cook United States, depends on the discoveries and Vancouver did not see the coast until it by Gray, and by Lewis and Clarke. They had been surveyed and mapped by Heceta. Shave chiefly rested on that by Gray; and, in There remains the title of Spain; and, as far virtue of it, claim the sovereignty over all the as mere discovery goes, it is complete. The countries drained by the Columbia-that is, voyages of Perez and Heceta possessed every the whole territory from about latitude 420 to requisite. They were exploring expeditions 52-it being, according to the doctrine of made by government ships, and for governthe American statesmen who conducted the ment purposes, and they were sufficiently negotiations of 1824 and 1826, an established minute to enable the coast to be mapped. Sinternational law, that a nation which dis But we have already seen, that settlement) covers the mouth of a river entitles itself to is essential to the completion of a title by disall the territory drained by that river. That covery, and is in itself an independent source is to say, that if Europe had been the unoc-of title.

cupied, and America the discovering country, We proceed, therefore, to inquire what the discovery of the mouth of the Danube title has been acquired to Oregon by Settle would have given to the discoverers the sov-ment. The first white men who appear to ereignty of Wurtemberg and Baden. It is have shown an intention to fix themselves in scarcely necessary to tell European readers, any part of that country were Meares and his (or even American lawyers, that no such ab-companions in 1788. Their continued resisurd rule exists. When Mr. Rush, and after-dence at Nootka Sound raised the jealousy of wards Mr. Gallatin. the American negotiators, the Viceroy of Mexico. He despatched Marwere asked for their authorities, they merely tinez with three armed vessels to dispossess Sreferred to the grants made by European the intruders. Martinez arrived on the 6th sovereigns of the territories watered by cer- May, 1789, at Nootka Sound-erected a fort tain rivers words of description, convenient there, and soon after seized Meare's vessels, enough for the demarcation of unknown and sent some of his men towards Europe in lands; but no more establishing the law in Captain Gray's ship, the Columbia, and the (question than grant after grant, describing rest to San Blas as prisoners.

its subject as bounded by a range of moun- The result was remarkable; each nation Stains, would prove it to be a rule of interna- demanded satisfaction-Spain for Meares' tional law, that the nation which first sees a intrusion into what she considered her terri mountain range is entitled to all the lands tories: England for the mode in which Spain) which that range intersects. Another fatal had taken the law against him into her own objection to any claim founded on Gray's hands. Each armed, but after a waste of discovery, is the really recognized interna- about three millions on our part, and one miltional law, that the discoveries made by lion on that of Spain, and probably a much (private individuals give no title to their na- greater loss occasioned to commerce by six tion. They prevent, indeed, any other nation months of uncertainty, the two governments (from acquiring a title by discovery, but confer came to their senses. The past was remedied Snone themselves. by an indemnity given by Spain to Meares,

A third objection is, that Gray was not the and the future provided for by the convention discoverer of the Columbia. It was first seen of the Escurial; or, as it is generally called, by Heceta, named by him the San Roque, the Nootka Sound Convention, of the 28th) and by that name laid down in maps. If October, 1790,

Gray, by entering it, and sailing up for fifteen By Article first of that treaty, the buildings) (miles, superseded Heceta, Broughton again and tracts of land on the North west coast of Superseded Gray by exploring it for more America, of which British subjects had been than eighty miles further. If it were true dispossessed, were to be restored.

that prior imperfect discoveries are super- Article third stipulates that the respective

subjects of England and Spain shall not be changed to Fort George. This is the only disturbed in navigating or fishing in the Pa-case in which any part of the Oregon cific or in the South Seas, or in landing on territory has been occupied by any person the coast of those seas in places not already under the authority of the British GovernSoccupied, for the purpose of commerce with ment. The treaty of Ghent, which termi the natives, or of making settlement there. nated that war, provided for the restoration of By Article fourth, British subjects are not all possessions taken by either party from the to navigate or fish within ten sea-leagues other during the war. In obedience to this from any part of the coast already occupied stipulation, Fort George was, on the 6th of by Spain. October, 1818, restored to an agent appointed By Article fifth, in all places on the North- by the American Government. The British western coast to the North of the parts of flag was struck, and the American hoisted. that coast already occupied by Spain—that This, again, is the only case in which any is, to the North of San Francisco, in latitude person authorized by the Government of the 380-wherever the subjects of either nation United States has occupied any part of shall hereafter make settlements, the subjects Oregon. But that occupation was as brief of the other are to have free access. as the occupation of Nootka Sound. Astoria

Captain Vancouver was despatched by the has been abandoned as a settlement, and is British Government to receive the surrender now reduced to a mere log-house, in which of the tracts of land mentioned in the first a clerk of the Hudson's Bay Company rearticle. On his arrival at Nootka Sound, sides, for the purpose of communication behowever, no such tracts of land were iden-tween Vancouver and the mouth of the Cotified. A hut was offered, which he refused. lumbia.

He left Nootka Sound in the possession of It follows from this statement, that up to the Spaniards; and there is considerable the year 1818, no civilized nation had acquired) doubt whether any lands were ever restored the sovereignty over any part of Oregon. to Meares, or whether there were any to re- Spain was entitled by discovery, but did not store. All that we know is, that in 1795 all perfect that title by permanent settlement; parties, Spaniards and English, had aban- and the settlements, if mere trading posts doned Nootka Sound, and it has not been can be called settlements, made by English reoccupied. or American subjects, were unauthorized by

During his voyage, Vancouver, we trust their respective government. without instructions, was guilty of an assump- The resumption of Nootka Sound by Eng.) tion of sovereignty more ridiculous than even land, and of Astoria by America, were indeed) the average absurdity of such transactions. official executive acts; but each of these He first took possession, in the name of posts has been abandoned. England, of all the country from latitude 39° Since that time, however, some pastoral 20 to the Straits of Fuca, and afterwards and agricultural establishments have, as we from the Straits of Fuca to the 59th parallel. have seen, been formed.

That is to say, the treaty, to superintend the But on two distinct grounds these settleexecution of which he was despatched, hav-ments_give no title to the sovereignty of the ing stipulated that the whole coast should be soil. First, because they have been merely open to settlement by England and by Spain, the unauthorized acts of individuals. With he took exclusive possession of nearly the respect to the British settlements, this is obwhole of it on the part of England. vious from the statement we have already)

We are glad to think that no British nego- given of the words of the Hudson's Bay tiator has relied on this assertion of claim. Company's charter. And with respect to Indeed, the Northern part of the territory the American settlements, the United States comprised in it is now under the undisputed have not done a single act authorizing their sovereignty of Russia, and the Southern un-people to acquire lands beyond the Rocky der that of Mexico. Mountains. Those who have done so are

The next important attempt at settlement mere squatters, like the squatters in Texas. was made by Mr. Astor, an American. He And secondly, because the convention of despatched an expedition by sea and by land, 1818, to which we shall immediately proceed,) which met near the mouth of the Columbia, and which has never ceased to operate, stipand in 1811 erected on its South bank a little ulates that during its continuance the country fort which he named Astoria, intended to be Westward of the Rocky Mountains shall be the centre of an extensive trade between open to the subjects of both powers; "it beAmerica and China. Nearly the same events ing understood," continues the treaty, "that followed as had occurred at Nootka Sound. this agreement is not to be construed to the{ In the course of the war between England prejudice of any claim of either party to any and America, which broke out in the next part of the country." It is obvious that the year, Astoria was taken by a British force, right of sovereignty being expressly left in the British standard hoisted, and the name abeyance, no act done by either party, during